Metera v. Foster Paving Block Co.

171 A.D. 957

Opinion

Kellogg, J.:

The right to examine a witness or party before trial is a statutory right, and to obtain it the statutory provisions must be complied with. The Special Term has no power to grant the original order; itmust be made by a judge. (Code Civ. Proc. § 873; Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278; Wiechers v. New Home Sewing Machine Co., 38 App. Div. 1; Weinstock v. Hallenbeck, 163 id. 966.)

* The order was, therefore, improperly granted at Special Term. We may state that the papers do not sufficiently show the necessity for the examination of the witness Rover and do not warrant his examination and the examination of the defendant’s plant. An examination of the plant cannot be obtained by such an order. Perhaps, upon proper facts shown, an inspection of the plant might be permitted under sections 803 to 809 of the Code of Civil Procedure. The order is, therefore, reversed, with costs. All concurred; Smith, P. J., Lyon and Howard, JJ., in result. Order reversed, with ten dollars costs and disbursements.

See Code Civ. Proc. § 768, as amd. by Laws of 1911, chap. 763; Matter of Low, 171 App. Div. 83, 84, note.— [Rep.