The ground of this motion is stated, in part, to be that the affidavit on which the original order for examination was granted was insufficient under section 872 of the Code of Civil Procedure, as supplemented by our rules of practice. The action is upon a policy of fire insurance. The affidavit, which is made by the attorney of record for tlie defendant, alleges that one A. H. Bowen was the agent and adjuster of the defendant, and had the management of the case in charge, and that he had told the affiant what he could learn about the case. The affidavit is entirely upon information and. *85belief, and concludes as follows: “That deponents’ knowledge, information, and belief is derived from statements made to deponent by said Bowen as the adjuster of the defendant.” This is mere hearsay evidence. Bowen should have made the affidavit, or some reason should have been assigned why such affidavit could not be forthcoming. Such an allegation is insufficient to support an order of this kind, and the order of the special term was right in vacating it. Moreover, all the information, with perhaps one or two exceptions, adverted to hereafter, which the defendant desired, could have been obtained in ttie proofs of loss which were furnished by the plaintiff to the defendant and its agents. The defendant, however, by its agent, not only in its correspondence refused to receive the proofs of loss as they were furnished, but gave notice in writing that it would not pay any attention in future to any further proofs, and did not care to have any supposed defects remedied, inasmuch as they should defend a recovery upon the policy. If these proofs of loss conformed to the requirements of the policy, they contained a description and valuation of the property destroyed, and the amount of other insurance thereon, if any, which are two of the principal facts which the affidavit states are desired to be ascertained before the answer can be framed. This circumstance, however, did not appear in the original papers, but was the subject-matter of affirmative affidavits used by the plaintiff, upon which the special term has acted in part. It goes far to show that the application for the examination of the plaintiff was not made in good faith, but for purposes of delay, as is contended by counsel for the respondent. The only remaining fact of importance which seems to have been desired by the defendant relates to the nature and extent of the plaintiff’s title to the premises. This, doubtless, could have been easily ascertained by an inspection of the records of the county clerk’s office of Niagara county, as is also shown by the' affidavits used in behalf of the respondent. But, irrespective of the affirmative facts shown upon the motion to vacate the order, the order for examination could not stand under the defects already pointed out, and appearing in the affidavit upon which it was granted. The order appealed from should be affirmed, with $10 costs and disbursements.
Barker, P. J., concurs. (Code Civil Proc. § 870 et seq.,) upon which the proceeding in this action was based, so far as applicable to the particular case of the examination of the plaintiff, in a pending action, by the defendant, before answer. “Sec. 870. The deposition of a party to an action pending in a court of record * * * may be taken * * * at the instance of an adverse party =:= * * at any time before the trial, as prescribed in this article.” “Sec. 872. The person desiring to take a deposition as prescribed in this article may present to a judge of the court in which the action is pending * * * an affidavit setting forth as follows: (1) The names and residences of all the parties to the action, and whether or not they have appeared; and, if either of them has appeared by attorney, the name and the residence or office address of the attorney. * * * (2) * * * The nature of the action, and the substance of the judgment demanded, and * * * the nature of the defense. * * * (4) The name and residence of the person to be examined and that the testimony of such person is material and necessary for the party making sucli application in the * * * defense of such action. * * * (7) Any other fact necessary to show that the case comes within section 870. Sec. 873. The judge to whom such an affidavit is presented must grant an order for the examination. * * * The order may, in the discretion of the judge, designate and limit the matters as to which he [the party] shall be examined.” Portions of the statute omitted show that it is only in case the person to be