Hagerty v. Pinelawn Cemetery

138 A.D. 905, 122 N.Y.S. 843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1910
• Status: Published

Opinion

Miller, J.:

This is an action for fraud and deceit. The complaint and the affidavit upon which the order was obtained have two characteristics in common, length and irrelevancy. However, the complaint does contain at least one averment of a false representation, and doubtless upon a proper affidavit the plaintiff would be entitled to an examination of the defendant to obtain testimony to use upon the trial for the purpose of proving the falsity of that representation. But the affidavit does not state that that is the purpose.of the examination or that the plaintiff intends to use the testimony obtained by the examination upon the trial. On the contrary, it expressly stated that the purpose of the examination is to enable the plaintiff “ to prepare * * * for trial; ” that the examination is necessary “for the plaintiff’s preparation for the trial of this action; ” and the number of irrelevant statements contained in the affidavit at least suggests a possible desire on the part of the plaintiff to harass and annoy the defendant. The rules governing applications of this kind have so frequently been stated by his court that the further statement of them ought to be unnecessary. The moving papers must show that the party applying for the examination intends to use the evidence obtained upon the trial of the action. (Bock v. Bock, 130 App. Div. 229.) The order should be reversed, with ten dollars costs and disbursements and the motion to vacate granted, with ten dollars costs. Ingraham, P. J., Laughlin, Clarke and Scott, JJ.,. concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.'