108 N.Y.S. 1138 | N.Y. App. Div. | 1908
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Held, that the moving papers did not show that the .examination -was necessary.' to frame the complaint, or that the testimony of the persons to be examined was material and necessary in the prosecution of the action, issue not having been joined; also on the ground that the affidavit on which the order of examination was granted was defective and insufficient in that it failed to state whether or not the defendants Satterlee and Busch had appeared in the action, and' if they or either of them had appeared therein, the name and residence or office address of the attorney, by whom they or either of them had appeared. All concurred; : Robson, J., on ground last stated, except Spring, J., who dissented and voted for affirmance.