dissenting:
The affidavit of the plaintiff sufficiently shows facts and circumstances to entitle him to the order to examine defendant before tiial. It states the complaint to be for assault and battery and false imprisonment. That Curtis made the arrest, and Corbin directed it. That plaintiff was a resident of Kings county. The affidavit further states that the answer denies every allegation in the complaint, and avers an affirmative defense in this; that plaintiff was at the time of the arrest a breaker of the peace. The affidavit further avers that the allegations in the answer are not true, and that the defendant’s testimony is material and necessary for the prosecution of the action. It will be seen that both defendants are material witnesses to be examined. Corbin knows if he ordered the arrest; Curtis knew if he made it by direction of Corbin, and if plaintiff was engaged in a breach of peace at the time. No particular form of words is necessary. It is only important that a judicial officer can see from the affidavit that facts are stated sufficiently to show materiality, and not merely a bare statement of the materiality of the witness.
The order should be reversed, with costs and disbursements.
Order affirmed, with costs and disbursements.