102 N.Y.S. 324 | N.Y. App. Div. | 1907
By sections 870, et-seq., of the Code of Civil Procedure a party to an action is given the right to take the deposition of an- adversé. party before or during the trial. Section 872 prescribes what, the affidavit on which an order for suelv an- examination is asked for must. contain. Subdivision 4 thereof requires that the ■ affidavit “ set forth ” that the testimony of the person to he exaniined “ is material and necessary for the party making such application, or the prosecution or defense of such action, and if.-the action is to recover" damages for personal injuries, that the defendant is ignorant of the .nature and extent.of sUch personal injuries.” ■ This is supplemented by rule 82 of the General Rules- of Practice, which reqUires that the affidavit “ specify the -facts aiid circumstances ” which, show the examination to he “ material and necessary.”
When the affidavit fulfills tliese requirements, ás it does in .this ease, the party is entitled to have.the examination; the order for it
The order should be affirmed.
Hirschbbrg, P. J., Woodward, Rich and Miller, JJ., ' concurred.
Order affirmed, with ten dollars costs and disbursements, and stay vacated.