Koehler v. Sewards

The object for which the examination of the defendant has been directed to be taken is to obtain facts to insert in the complaint, to present a cause of action. The claim is made that, on loans of money made at different times by the defendant to the testator, usurious rates of interest were exacted and paid, and it is proposed to examine the defendant, to obtain an account of such loans, and the interest reserved and received. But fundamental difficulty appears in the way of sustaining the order; and that is that the affidavit has been made by the attorney, and its important statements rest upon information and belief alone. Such an affidavit has been so often held to be insufficient for an order of this nature as almost to render it needless to cite authorities to sustain the position. It was distinctly so held in Barnard v. Kobbe, 54 N. Y. 516, 520, 521, and in Bank v. Alberger, 78 N. Y. 252. Beyond that, the answer of the plaintiff herself, in the suit of Wortmann against herself, indicates the fact to be that she is possessed of ample information concerning the loans, so as to be able to frame her complaint without the examination of the defendant. The order should be reversed, with $10 costs, and also the disbursements. All concur.