64 N.Y.S. 202 | N.Y. App. Div. | 1900
The papers upon which the order for the appellant’s examination was obtained did not show that it was important or necessary that his testimony should be taken before the trial rather than at the trial. It has repeatedly been held that it is essential that such importance or necessity should be made to appear. (Williams v. Folsom, 54 Hun, 308 ; Jenkins v. Putnam, 106 N. Y. 272.) This well-established rule was disregarded in the refusal to vacate the order of examination. The learned judge at Special Term conceded in his opinion that- there were many decisions in the first judicial department which seemingly required that the order of
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate order of examination granted.