(dissenting):
An order was made by one of the justices of the Supreme Court of the second district for the examination of the defendant in this action after issue joined, before himself or one of the justices of this court at the chambers thereof in the county court-house, city of New York. On the return of the order the defendant appeared and objected to the proceedings and applied to vacate the order. *167The motion was granted and this appeal is from that order. The motion to vacate was based on the insufficiency of the affidavit which, after reciting the case and the pleadings, simply says that the testimony of the defendant is material and necessary on the part of the plaintiff to enable her to prove her cause of action herein and prepare for trial. This is all, respecting the materiality of the testimony. Then it is stated that the facts and circumstances which show that the testimony and examination -of the defendant before trial is necessary and material, are that the plaintiff alleges in her complaint that the defendant was the owner of the Eagle Mill, and the defendant in his answer denies the allegation, and deponent wishes to examine the defendant to prove what interest he has in the Eagle Mill, and to ascertain whether it is a corporation or a co-partnership, and deems it necessary so to do in advance of the trial, for the purpose of obtaining admissions of the facts in issue and to prevent surprise on the trial, and to dispense with the necessity of procuring witnesses to establish facts which may be admitted by the plaintiff on such examination.
The plain object of this examination, as disclosed by this affidavit, is the procurement of information to enable the plaintiff to prepare for the trial of the cause, and especially to ascertain whether the action is properly brought against the defendant. Our view of the Code provisions on this subject is, that they contemplate a deposition of the party in a case like the present to be used as testimony on the trial of the action, and that the affidavit used to obtain the order must not only state in obedience to the requirements of subdivision four of section 872, that the testimony is material and necessary for the party making such application for such purpose or for the prosecution or defense of such action, but must also, in obedience to the requirements of Rule 89 of 1817 (Rule 83 of 1880) of this court, specify the facts and circumstances which show in conformity with subdivision 4 of section 872, that the examination of the person is material and necessary for use on the trial of the cause.
There is no statement in this affidavit that the testimony of the defendant is necessary or desirable for the plaintiff, but only that the same is material and necessary on the part of the plaintiff to enable her to prove her cause of action and prepare for trial, or in *168other words to enable her to procure testimony to pi’ove her cause of action and prepare for trial. It certainly seems contrary to the spirit of the law to allow a party to harass his adversary with an examination before trial, for the purpose of ascertaining whether he has a cause of action 'against him and, if so, what' testimony he must procure to substantiate the same. Such a practice might open the door to great abuses, and become the fruitful source of oppression and wrong. This affidavit neither states nor shows that the testimony of the defendant is necessary or material for the prosecution of the action, but does show an intent to force from the defendant information which would facilitate the plaintiff in the procurement of testimony to be used against him. The decisions in the cases of Beach v. The Mayor (14 Hun, 79) and Chapin v. Thompson (16 id., 55) meet our approbation, and we think it the duty of the courts to see to it that this power of examination be not perverted to misehevious and unjust purposes.
The power to make the order appealed from is beyond question, and the same was properly exercised.
The order must be affirmed, with costs.
Order reversed, with costs and disbursements.