105 A.D. 115 | N.Y. App. Div. | 1905
The respondent has obtained an order for the examination of two corporations for the purpose of enabling her to frame a complaint in an action which she alleges she is about to bring against said corporations, and from the order of the Special Term denying the motion to vacate said order this appeal is taken. No claim is made that the examination is desired for the purpose of perpetuating testimony, and the appellants insist that section 870 et seg. of the Code of Civil Procedure do not authorize the examination of a party before action brought except for the sole purpose of perpetuating testimony. Section 872 provides what must be shown by the person desiring to take a deposition to entitle him to such an order. Subdivision 6 of said section provides: “ If no action is pending, that the person expected to be the adverse party is of full age, and a resident of the State, * * * also the circumstances which render it necessary for the protection of the applicant’s rights, that the witness’ testimony should be perpetuated.” Section 873 provides: “The judge to whom such an affidavit is presented must grant an order for the examination, if an action is pending; if no action is pending he must grant it if there be reasonable ground to believe that an action will be brought, as stated in the affidavit, and that the" application is made in good faith to preserve the expected testimony; otherwise he must dismiss the application.” These provisions seem to be so clear as to leave no room for construction, and they apply to the proposed examination of both an expected party and a witness not a party. The respondent cites cases in which an examination of an expected party appears to have been ordered before the service of the summons for the sole purpose of enabling the plaintiff to frame a complaint, but in none of those cases was the question here presented raised or considered by the court, it apparently having been assumed by counsel that such an examination could be had either before or after service of summons. The appellants cite two cases (Matter of Morris v. Matthews, 19
The respondent insists that as the order for examination can only be made by a judge, the Special Term did not have jurisdiction to vacate the order. The practice of moving on notice at Special Term to vacate the order was proper. (Code Civ. Proc. § 772.)
The order, should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with costs.
Hirsohberg, P. J., Bartlett, Woodward and Jenks, JJ., ■concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.