The order was not obtained ex parte, but on notice of motion. The plaintiff avers in his affidavit on which the order was obtained “ that the sole and only purpose of such testimony and the request of the examination of the defendants herein is to prepare for such trial ” ; and the motion should have been denied for this. A party cannot be examined before trial for any such purpose (Diefendorf v. Fenn, 125 App. Div. 651). The affidavit seems to have been prepared with very little, if any, familiarity with section 872 of the Code of Civil Procedure and such of the decisions thereunder as are any longer controlling. But I am not prepared to vote to reverse the order on account of the other deficiencies in the affidavit which the appellant points out, viz., (1) that it does not give the name and residence of the defendant’s attorneys, (2) or state the nature of the judgment demanded, (3) or of the defense, i. e., answer. The complaint and answer were made part of the papers on which the motion was made, and they show all of these things much better than an affidavit could do it. And why, if it comes to that, should the affidavit state the names of the parties and of their attorneys— *462for what purpose ? The names of the parties are in the title, and those of the attorneys on the pleadings, and the addresses of the parties and attorneys are only so much verbiage. Section 872 prescribes it, but its provisions are taken from the old chancery rule for bills of discovery. When a party could not examine an adverse party in a common law action, but had to go into chancery with a bill of discovery, there was a reason why the bill should describe the pleadings in the common law action and give the names and addresses of the parties thereto and of their attorneys, but now that the examination is had in the action itself, and the entire record ispresent, there is no reason therefor, and the lack of such matter from the affidavit may well be excused when the order is obtained on the pleadings also. In such case it becomes mere verbiage. The broad meaning of the section is that such matter shall be shown before the Judge to whom the application is made; and if shown by the best evidence, secondary evidence of it becomes unnecessary. Even where property rights are at stake, a substantial compliance with a statute prescribing the steps to pursue suffices. The letter often killeth. Very little should suffice to dispense with a useless statute requirement; indeed, in the case of proceedings divesting title to property, a requirement which could in no way safeguard the rights of the owner, and is useless, is disregarded.
Order reversed, with ten dollars costs, and disbursements, and motion denied, with costs.