Robertson v. Russell

The affidavit upon which the order for the examination of the plaintiff was granted does not comply with the requirements of subdivisions 2 and 4 of section 872 of the Code of Civil Procedure, or with Rule 89.

Under this section, as amended in 1879, it is incumbent upon the defendant, whether making the. application for the examination before or after the answer, to set forth in his affidavit the nature of his defence (subdivision 2). This the defendant has uttei’ly failed to do in the present instance.

*245There is, however, a still more serious objection to defendant's affidavit. Subdivision 4 of the section above referred to requires, in conjunction with Rule 89, that the facts and circumstances should be specified showing that the examination is material and necessary. It is no compliance with these provisions for the affidavit to simply state in the language of the rule that the examination is material and necessary, for that is but giving his judgment of the matter.

The judge to whom the application is made must determine the materiality and necessity from the facts of the case. (Greer v. Allen, 15 Hun, 432; Beach v. Mayor, 14 id., 82.)

The affidavit in question does not specify a single fact or circumstance showing the necessity for plaintiff's examination to enable defendant to prepare his amended answer. It sets forth at great length the subjects upon which the examination is sought, but nothing is stated from which the judge granting the order could determine why the deposition of the plaintiff upon these points was essential to the preparation of defendant's answer or defence.

The order appealed from should be reversed, with the costs and disbursements of this appeal and ten dollars costs of the motion.

Order reversed, with costs and disbursements.