Galligan v. August

An order for the examination of an adverse party before trial is not matter of strict right; it should be sustained only where the evidence is material to the party seeking it, and there is danger that the oral evidence of the party cannot be had at the trial. Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. Rep. 613. At all events, it is for this court to determine whether a proper ease for an examination in advance of the trial has been established. The action is to recover damages for injuries received by the negligence of the defendant, as owner of certain realty. The defendant admits the ownership, but denies “possession and control.” Ordinarily, these things follow the legal title, and, if any one else is in possession or control, the fact ought to be easily ascertained in many ways. If the examination of the defendant becomes necessary, (and it probably will not,) it maybe had at the trial. At all events, we find no necessity for the examination in advance of the trial, and deem the attempt to obtain it experimental. It follows that the order appealed from must be reversed, with costs. All concur.