Grout v. Strong

1 Misc. 214, 20 N.Y.S. 881, 49 N.Y. St. Rep. 78

• Court: City of New York Municipal Court
• Decided: November 15, 1892
• Status: Published

Opinion

Fitzsimons, J.

This is an appeal from an order denying a motion to vacate an order for defendant’s examination before trial.

It appears from the affidavit upon which said order (for defendant’s examination) was granted, that the testimony desired is solely within the defendant’s control and knowledge, and that the same is necessary to enable the plaintiff to maintain this action upon the trial. Justice Danforth, in Herbage v. City of Utica, 109 N. Y. 82, says: “ That a party litigant may, in the discretion of the judge to whom application is made under the provisions of sections 870, 872, 873 of the Code, have a general examination of his adversary as a witness in the cause as well before as at the trial.”

A careful examination of the appeal book convinces us that the order appealed from was jproperly granted, and must, therefore, be affirmed, with costs.

Ehrlich, Ch. J,, and Newburger, J., concur.

Order affirmed.