Preston v. Hencken

9 Abb. N. Cas. 68

Opinion

Freedman, J.

Although the defendant discloses some reason, though not a controlling necessity, for his examination at his own instance under subdivision 5 of section 872, if that subdivision could be deemed to embrace the case, yet a party to an action being expressly excepted therefrom, the examination cannot be had under it.

The defendant is therefore bound to show a right to the examination under some one of the remaining subdivisions of that section, and, by facts and circumstances, the materiality of and necessity for such examination. This he has not done. The order must be vacated, with $10 costs.

There was no appeal.