Crooke v. Corbin

The deposition oí a party to an action pending in a court of record, may be taken at his own instance, or at the instance of adverse party, or of a co-plaintiff or co-defendant at any time before the trial. As the foundation for the order, there must be presented to the judge who makes it an affidavit, setting forth, among ■other things in a case like the present, the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making the application. -(Code Civ. Pro., § 872, subd. 4.) By rule 89 (83 of 1880) of the Supreme Court, where an examination is required as in this case, the affidavit shall 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.

The affidavit upon which the order for examination in this case ■was made, does not reach the standard thus set up. The only allegation of the affidavit respecting the materiality and necessity of the testimony of the parties whose examination is sought, is “ that the defendant’s testimony is material, and necessary for the party making this application and the prosecution of this action. The plaintiff cannot safely proceed to trial, without examining the defendants.”

No fact or circumstance to show the examination material' and necessary is specified, and the affidavit is insufficient in that *178respect. Tbe purpose of tbe rule of court is to require tbe statement of fact showing the materiality of testimony sought, and that it is required for use, as evidence on the trial. Information desired for the preparation for trial, cannot in this way be obtained.

The order appealed from should be affirmed, with costs and disbursements.

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.