Golin v. Town of Mooers

Putnam, J.,

(concurring.) Under sections 870 and 872 of the Code of Civil Procedure, a party may take the deposition of the opposite party before trial; but *13by subdivision 4 of section 872, in his affidavit, on which he applies for the order to examine him, he must show that the testimony desired is material and necessary in the prosecution or defense of the action. It is not sufficient to state in the affidavit that the desired testimony is material and necessary; for rule 83 of the supreme court provides that in the affidavit the party applying for such an order shall state the facts and circumstances showing that such an examination is material and necessary. Subdivision 4 of section 872 of the Code and rule 83 have been considered and construed in many reported cases; and it is held that “the judge must be able to see from the facts” stated that the testimony is material and necessary. “If, from the nature of the action and the other facts disclosed, he can see that the examination is not necessary for the party seeking it, ” then he should not grant the order. See Jenkins v Putnam, 106 N. Y. 275, 12 N. E. Rep. 613; Same v. Same, 26 Wkly. Dig, 155 It must fairly appear from the facts set out in the affidavit and the papers submitted to the judge on the application for such an order that the applicant requires the testimony of such a party sought to be examined as a witness. If the applicant evidently does not know whether the evidence sought is material or not, or the object of the examination is to And out what the opposite party will swear to, the order should be denied. In this case the action is brought for injuries to the property of plaintiffs, alleged to have occurred by reason of a defective bridge; and damages were claimed for injuries to a threshing-machine, and the loss of benefits of contracts for threshing grain. The affidavit states only the following facts, if any, showing the examination of plaintiffs material and necessary; “The testimony of plaintiffs in this action is material and necessary, on the part of the defendant herein, * * * to obtain * * * a statement of all the facts and circumstances within the knowledge of said plaintiffs relating to said accident, * * * the exact location of the bridge, and the part of said bridge that the plaintiffs allege in said complaint was defective and out of repair, and unsafe for use; what parts of said threshing-machine were broken and rendered worthless; what contracts the plaintiffs had for threshing grain mentioned in said complaint, the names of the persons with whom the same were made, and the terms of the contracts; and the name or names of all person or persons who were present at the time of said accident.” It does not appear from the affidavit but what the defendant, or its officers, know the location of the bridge, and the defective part thereof, as well as the plaintiffs. It is to be presumed that the officers of the defendant have as much knowledge in this regard as the plaintiffs. It is not shown that the officers of the defendant did not know what parts of the machine were broken or injured, nor is it alleged that the defendant or its officers cannot have inspection of the machine. As to the contracts that plaintiffs had, and with whom, if these facts are important, material, or necessary for the defendants to know, and are not known to its officers, the better way to obtain the desired information is to obtain a bill of particulars. It will not be seriously claimed that an order to examine plaintiffs should be given, in order that defendants may ascertain who were present when the accident occurred. It will be perceived that there is an absence of proof in the affidavit on which the order to examine was obtained of any fact showing that it was necessary for defendant to examine plaintiffs before trial, and that any examination taken would probably be used on the trial. The affidavit in this case was certainly no stronger than that presented to the judge in Jenkins v. Putnam, (see 106 N. Y., at page 274,12 N. E. Rep. 613;) and yet that affidavit has been held by this court insufficient to justify the granting of such an order. Jenkins v. Putnam, 26 Wkly. Dig. 155. See, also, Chapin v. Thompson, 16 Hun, 53. We do not think that any facts or circumstances appeared in the papers submitted to the county judge which justified the order granted to examine the plaintiffs before trial, under the construction given by the courts to rule 83 and subdivision 4 of sec*14tian 872 of the Code of Civil Procedure. The order appealed from should be reversed, with costs and disbursements, and the motion made at special term granted, with $10 costs.