In re N. Dain's Sons' Co.

131 N.Y.S. 1130 | N.Y. App. Div. | 1911

The disposition of this appeal is controlled by the rule stated in Matter of Schlotterer (105 App. Div. 115), which, holds that sections 870 et seq. of the Code of Civil Procedure do not authorize the examination of a proposed party to an action not yet begun, except for the sole purpose of perpetuating the testimony of such proposed party. The application under review is made upon the ground that the plaintiff cannot safely frame his complaint without such examination. Order reversed, with ten dollars costs and disbursements, and motion granted, with costs. Jenks, P. J., Burr, Carr, Woodward and Rich, JJ., concurred.