Metera v. Foster Paving Block Co.

155 N.Y.S. 760

Opinion

JOHN M. 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; it must be made by a judge. Code of Civil Procedure, § 873; Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278; Wiechers v. New Home Sewing Machine Co., 38 App. Div. 1, 56 N. Y. Supp. 235; Weinstock v. Hallenbeck, 163 App. Div. 966, 148 N. Y. Supp. 1150. 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.

WOODWARD, J., concurs. SMITH, P. J., and LYON and HOWARD, JJ., concur in result.