Bramer v. First National Bank

189 A.D. 947

Opinion

The line of authorities (Town of Hancock v. First National Bank, 93 N. Y. 82; Matter of Bryan, 3 Abb. N. C. 289; Matter of Anthony & Co., 42 App. Div. 66; Matter of White, 44 id. 119; Long Island Bottlers v. Bottling Brewers, 65 id. 459; Akhurst v. National Starch Co., 64 Misc. Rep. 445; American Woolen Co. v. Altkrug, 139 App. Div. 671, and Knowlton v. Bannigan, 11 Abb. N. C. 419) to the effect that the examination of a third party before trial is permissible only for the purpose of perpetuating the testimony to be used on the trial, and that, therefore, such an order cannot be sustained without allegations that the witness is about to depart from the State, or is sick, or there is some other reason why his testimony cannot be secured at the trial, has been departed from only in cases where the defendant had secured an order compelling plaintiff to furnish a bill of particulars or to make his complaint more definite and certain, which order could not be complied with unless plaintiff obtained the information by the examination of a third party. (Chittenden v. San Domingo Improvement Co., 132 App. Div. 169; Hill v. Bloomingdale, 136 id. 651; People v. Armour, 18 id. 584.) We think the exception to the general rule should not be extended, and, therefore, affirm the order, with ten dollars costs and disbursements. Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ., concurred.