44 N.Y.S. 82 | N.Y. App. Div. | 1897
Lead Opinion
By rule 82 of the General Rules of Practice it is provided that to obtain an order for the examination of a party before trial the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of section 872 of the Code, that the examination of the person is material and necessary. The facts must be stated in the affidavit, so that the court can judge as to whether or not the examination of the party proposed to be examined is material and necessary for the party making the application. An examination of an adverse party cannot be said to be material unless the facts are stated from which it appears that the testimony of the party proposed to be examined is necessary to be used upon
Van Brunt, P. J., and Patterson, J., concurred; O’Brien and Williams, JJ., dissented.
Dissenting Opinion
We think the affidavit sufficient.
Order reversed, with ten dollars costs and disbursements, and order vacated, with ten dollars costs.