Ziegler v. Lamb

40 N.Y.S. 65 | N.Y. App. Div. | 1896

Per Curiam :

This order should be reversed. The plaintiff makes no affidavit upon which to obtain the order for the examination of the defendant before trial. His attorney alone makes the affidavit.

But, further, it clearly appears from the attorney’s affidavit that he does not need the defendant’s examination for the purpose to which he refers, namely, the purpose of amending his complaint by setting up the real owners of the land. The defendant admits that he has the legal title to the property, and that is sufficient. There is no provision allowing the examination of a party to an action before trial so as to enable his adversary to ascertain whether he has a cause of action against other persons not parties. The avowed object of this examination is to discover whether or not such persons exist, and we know of no principle that would justify the granting of such an application.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendant before trial granted, with ten dollars costs.

Present — Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.

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