Reynolds v. Callan

134 A.D. 732, 119 N.Y.S. 135, 1909 N.Y. App. Div. LEXIS 2966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1909
• Status: Published

Opinion

Sewell, J.:

Before a party can be permitted to examine his adversary before trial he must present an affidavit setting forth, among other things : “ That the testimony of such person is material and necessary for the party making such application.” (Code Civ. Proc. § 872.) This provision of the Code is supplemented by rule 82 of the General Rules of Practice, which requires that the affidavit shall specify the facts and circumstances which show that the examination of the person is material and necessary. It is clear that the affidavit upon which the order for examination in this case was made does not comply with these requirements. Ho fact or circumstance to show that the deposition of the defendant is material and necessary is specified. On the contrary, it is quite apparent that the testimony sought to be elicited would be neither material nor necessary to establish the cause of action alleged in the complaint.

Many of the technical rules which formerly restricted the right of a party to examine his adversary before trial have been relaxed, but the fundamental rule that the testimony sought must be essential to the moving parties’ case has not been abrogated. (Oakes v. Star Co., 119 App. Div. 358; Caldwell v. Glazier, 128 id. 315.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for examination granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted, with ten dollars costs.