In re White

| N.Y. App. Div. | Nov 15, 1899

Barrett, J. :

The applicant asserts that his object here is to perpetuate De Selding’s testimony and to use it upon the trial of a contemplated action against Salmon. In this view he fails to state any circumstances which render it necessary for his protection that the witness’ testimony should be perpetuated.. This he was required to do by subdivision 6 of section 8.72 of the Code of Civil Procedure. He states certain facts which show that it is very- important he should know what this witness' will testify to, and that he cannot with safety bring an action against Salmon until he is thus advised. These, however, are not circumstances which relate to the necessity of perpetuating the witness’ testimony, and, as no such circumstances are disclosed,-the order for the examination was unauthorized.

It.is apparent, however, that the real object of the applicant is not what he thus avows. In fact, his counsel deposes that the witness’ testimony is necessary “ for the plaintiff in determining whom he shall make party' defendant in this (contemplated) action.” And again : “ That a summons cannot be drafted herein, nor a complaint, without finding out who was in possession of said premises (the premises in front of which the applicant was injured), at the time of. -the alleged injury.” The real object of the applicant, therefore, is to ascertain whether he has a cause of action against Salmon. The order should consequently have been Vacated : First, because the applicant’s purpose is not, as it was in Merchants' National Bank v. Sheehan (101 N.Y. 176" court="NY" date_filed="1886-01-19" href="https://app.midpage.ai/document/merchants-national-bank-v--sheehan-3576670?utm_source=webapp" opinion_id="3576670">101 N. Y. 176), to examine a person against whom an action is about to be brought, but to examine a witness to ascertain whether he has a cause of action against a particular person, and, if he finds he has, to frame his complaint advisedly against such person. That, as we held in Matter of Anthony (42 A.D. 66" court="N.Y. App. Div." date_filed="1899-06-15" href="https://app.midpage.ai/document/in-re-e--h-t-anthony--co-5186175?utm_source=webapp" opinion_id="5186175">42 App. Div. 66), is not authorized by sections 871 to 876 of the Code of Civil Procedure. Second) because, as was said in the case last-cited, “the proposed defendant must be. definitely, and not tentatively, -named in the affidavit (Code Civ. Proc. § 872); and that it must also be made to appear that the applicant has a- cause of action against such specific person.”

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

' Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.