an adverse party before trial, shall expressly state that the plaintiff intends to use the proposed deposition of the defendants upon the trial of the action; it is sufficient that the necessary inference to be drawn from the facts alleged and the statements made by the moving party, is that he intends to read the testimony on the trial. St. Clair Paper Mfg. Co. v. Brown (1897), 16 App. Div. 317, 44 N. Y. Supp. 625. The moving papers must show that no previous application for an order has been made as required by Rule 25. Mitchell v. Greene (1907), 121 App. Div. 677, 106 N. Y. Supp. 449. An affidavit containing a mere general averment that the testimony is material and necessary is insufficient; the affidavit must specify the facts and circumstances which show that the examination of the person is material and necessary in conformity with the above rule. Butler v. Duke (1902), 39 Misc. 235, 79 N. Y. Supp. 419. In the absence of bad faith or abuse of process, a party is entitled to examine his adversary before trial as to facts material to the issue and of which the adversary has knowledge, upon complying with this rule and the provisions of the Code of Civil Procedure. Koplin v. Hoe (1908), 123 App. Div. 827, 108 N. Y. Supp. 602. When the affidavits fulfill the requirements of section 872 of the Code and Rule 82, the court has no power to set up other requirements, and the order must be granted. Shouts v. Thomas (1907), 116 App. Div. 854, 102 N. Y. Supp. 324. Who may make the order. The court at Special Term has no power to grant the order, for the purpose of enabling a plaintiff to frame his complaint. Heishon v. Knickerbocker Life Ins. Co. (1879), 77 N. Y. 278. An order for an examination to frame a complaint should only be granted by a judge. Goskowitz v. Sulzbacher (1907), 121 App. Div. 878, 106 N. Y. Supp. 865. The Supreme Court has no power to make a court order for the examination of a plaintiff in an action as a witness before trial, upon a contested motion, brought on to be heard pursuant to a formal notice thereof. The proper practice, under section 873 of the Code, is to apply ex parte to a judge, who, if the papers are sufficient, must make the order. Wiechers v. New Home Sewing Machine Co. (1899), 38 App. Div. 1, 56 N. Y. Supp. 235. Service of an order by mail for an examination of a defendant for the purpose of enabling plaintiff to frame his complaint is good service. Eli v. Perkins (1908), 127 App. Div. 823, 112 N. Y. Supp. 122. When and for what purposes granted.—The order should not be granted before service of summons. Brandon Mfg. Co. v. Pettingill (1878), 2 Abb. N. C. 162. But see Merchants' Nat. Bank v. Sheehan (1886), 101 N. Y. 176. The examination may be had before issue and after the commencement of the action. Glenny v. Stedwell (1870), 64 N. Y. 120; Duffy v. Lynch (1869), 36 How. Pr. 509. An examination of the defendant before trial cannot be ordered for the purpose of ascertaining facts which the plaintiff can learn from other sources available to him. Nott v. Clews (1885), 20 Week. Dig. 274. See also Dyett v. Seymour (1887), 13 Civ. Pro. R. 127; Cross v. Nat. Fire Ins. Co. (1889), 17 id. 199; S. C., 6 N. Y. Supp. 84. A party cannot be examined before trial for the purpose of obtaining admissions. McMahon v. Brooklyn City R. R. Co. (1885), 20 Week. Dig. 404. An examination of the defendant should not be granted to enable his adversary to ascertain whether he has a cause of action against other persons who have not been made parties to the action. Ziegler v. Lamb (1896), 5 App. Div. 47, 40 N. Y. Supp. 65. A person is not entitled to examine all the persons whom he expects to make parties to the action to ascertain against whom he has a right of action. Matter of Ellett v. Young (1904), 95 App. Div. 417, 88 N. Y. Supp. 661. Where the object of the plaintiff is to procure testimony to prepare for trial, the application should be refused. The deposition can be taken only where the testimony is material and necessary for the party to be used on the trial of the action. Davis Machine Co. v. Robinson (1903), 42 Misc. 52, 85 N. Y. Supp. 574. In an action to recover damages for the death of plaintiff's intestate caused by the alleged negligent and unlawful operation of the trains of a railroad company in a city street, the plaintiff may examine the company's officers as to the identity of the train which killed the intestate, and as to whether such train was operated and controlled by the defendant, or by some other railroad corporation operating its trains in such street. Muldoon v. N. Y. C. & H. R. R. R. Co. (1904), 98 App. Div. 169, 91 N. Y. Supp. 65. Where the taking of a party's deposition is only on the ground that it is material and necessary on the trial, it is not permitted until after issue joined. Diefendorf v. Fenn (1908), 125 App. Div. 651, 110 N. Y. Supp. 68. If a witness be available at the date of a trial he must be produced by subpoena and his deposition cannot be read. Stapleton v. La Shelle (1908), 124 App. Div. 661, 109 N. Y. Supp. 446. Where a defense is alleged, which, if established and unanswered, will destroy the plaintiff's cause of action, he may examine the defendant before trial, not for the purpose of disclosing the defense, but to avoid it. Schweinburg v. Athman (1909), 131 App. Div. 795, 116 N. Y. Supp. 318. In an action for libel the plaintiff is not entitled to an order for examination of defendant before trial where moving affidavit merely alleges that the testimony is material and necessary to enable the plaintiff to prove that the defendant is the owner of an automobile which ran over the plaintiff's Courts may make further rules - Rule 83 son and certain other matters relevant to the issue which are within the defendant's knowledge. Irving v. Higgins (1909), 131 App. Div. 194, 115 N. Y. Supp. 254. A motion to examine the defendant before trial in order to frame the complaint in an action for an accounting should be denied where the moving affidavits disclose information sufficient to enable the plaintiff to frame his complaint so as to entitle him to an interlocutory judgment. Matter of Gardner (1908), 124 App. Div. 654, 109 N. Y. Supp. 95. The above rule is intended to prevent an abuse of the permission to examine an adverse party, so that a party to an action will not be allowed to examine his opponents for an ulterior or improper purpose. When an applicant has complied with the rule it is no defense that he can subpoena the witness sought to be examined, or that the witness or defendant will stipulate to appear at trial, or that the evidence can be obtained through other persons. Goldmark v. U. S. Electro Galv. Co. (1906), 111 App. Div. 526, 97 N. Y. Supp. 1078. A defendant may examine the plaintiff to ascertain what she gave for a note which is the subject of the controversy, and may use that examination on the trial in aid of its defense that the note was without consideration. This right cannot be taken away by a statement on the part of the plaintiff, that she would be present and testify. Presbrey v. Public Opinion Co. (1896), 6 App. Div. 600, 39 N. Y. Supp. 957. See also Press Pub. Co. v. Star Co. (1898), 33 id. 242, 53 N. Y. Supp. 371. As to granting order before commencement of action, see Matter of Anthony & Co. (1899), 42 App. Div. 66, 58 N. Y. Supp. 907. The motion will not be granted merely to enable a party to find out what his opponent's witnesses will swear to, or to enable the party to procure other evidence to be produced on the trial. Leary v. Rice (1897), 15 App. Div. 397, 44 N. Y. Supp. 82. Nor should it be granted when it appears that the entire object of the examination is to show by the testimony of the defendant, and from his books and papers, that he procured the property from the plaintiff by means of false and fraudulent representations concerning his ability to pay therefor. The Yamato Trading Co. v. Brown (1882), 27 Hun, 248. Vacating order. It is not sufficient ground for vacating an order to examine an adverse party before trial that such party is a resident of the county and intends to be present at the trial, nor that the applicant can procure the required information from other persons; nor is a denial by the party sought to be examined of knowledge of the facts a sufficient ground. Turck v. Chisholm (1907), 53 Misc. 110, 103 N. Y. Supp. 1095. Rule 83. Courts may make further rules The Appellate Division in each department, and the various courts of record, may make such further rules in Practice when not covered by rules or statutes - Rule 84 regard to the transaction of business before them respectively, not inconsistent with the foregoing rules as they in their discretion may deem necessary. Formerly Rule 96, 1871; Rule 96, 1874; Rule 90, 1877; Rule 84, 1880; Rule 84, 1888; Rule 83, 1896. The above rule gives each department of the Appellate Division power to regulate the practice of referees and the notice to be given in judicial sales, and the effect of such notice of sale, not inconsistent with the Code of Civil Procedure or the General Rules of Practice. Francis v. Watkins (1902), 72 App. Div. 15, 18, 76 N. Y. Supp. 106. Rule 84. Practice when not covered by rules or statutes In cases where no provision is made by statute or by these rules the proceedings shall be according to the customary practice as it formerly existed in the Court of Chancery or Supreme Court, in cases not provided for by statute or by the written rules of those courts. Formerly Rule 93, 1858; Rule 97, 1871; Rule 97, 1874; Rule 91, 1877; Rule 85, 1880; Rule 85, 1884; Rule 84, 1896. |