8 N.Y.S. 14 | N.Y. Sup. Ct. | 1889
The practice of examining a party before trial, at the instance of the opposite party, should be carefully guarded by the court, so that it may not be productive of evil. When it is evident that the party asking for the examination is sufficiently acquainted with the facts of the case to obtain the proof which he needs, and that in fact he desires the examination only to discover to what his opponent will testify, then the order should not be granted, or, if it has been granted, should be set aside. The provisions for such examination are not intended to enable a party to discover what his opponent’s testimony will be, so that he may obtain witnesses to contradict it. Experience shows that if a party discovers what his opponent’s testimony will be, and has time enough, he is often successful in discovering, also, witnesses for contradiction. 2Tow, in the present case it is plain that the defendant knows all the circumstances which it needs to prepare its defense. The place where the accident took place is distinctly specified in the complaint. Furthermore, one of the defendant’s witnesses (named in the affidavit to, change the place of trial) was present at the accident. Another saw the marks of the wagon-wheels, and the horse lying at the side of the road. Four others were at the house to which plaintiff immediately went, and are well acquainted with the condition of the road at the place where the accident occurred. All of these persons, also, must know the condition of the weather and atmosphere at the time. As to the age of the person driving with plaintiff, and the condition of both of them, the defendant has stated that by two other witnesses he expects to prove that plaintiff’s companion (naming him) had been drinking, and was unfit to drive. As to the extent of the injuries, the defendant has already stated that it expects to prove this* by two physicians, whom it named. We are unable to understand, after reading the affidavit used to obtain a change of the place of trial, how the affiant could make a subsequent affidavit that no witness could be found who was acquainted with the facts as to which the examination was denied, although diligent inquiry had been made. We think that this application is strikingly of the kind called “a fishing excursion,” and which is condemned in many cases; among them,
