New York County NyArchives Court.....Williams, Louisa Vs. Samuel Folsom 1889
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Source: Reports Of Cases - N Y
Written: 1889

LOUISA WILLIAMS and Others, Respondents, v. SAMUEL D. FOLSOM and Others, 
Appellants.

Examination of a party before trial — order reversed if it is not stated in the 
affidavits that the testimony is to be used on the trial.

In order to entitle a party to an order, requiring an examination of his 
adversary before trial, he must show special circumstances making it important 
to take the testimony of his adversary before trial instead of at the trial.
 
The fact that the affidavits, upon which the application is made, do not state 
that it is intended to use the testimony upon the trial, justifies the court in 
setting aside such an order for an examination.

Jenkins v. Putnam (106 N. Y., 272) followed.

Appeal from an order, made at the New York Special Term, denying a motion to 
vacate an order for the examination of the defendants before trial, which was 
entered in the office of the clerk of the city and county of New York on 
December 7, 1888.

E. G. Perkins, for the appellants.

Paul P. Cravath, for the respondents.

Van Brunt, P. J.:

It is apparent, from the brief of the respondents in this case, that the ground 
upon which the order is sought to be upheld is that there is no need for a party 
making an application for the examination of his adversary before trial to show 
any special circumstance making it important to take the testimony of such 
adversary before trial instead of at the trial.

We think this is an entirely erroneous view to take of the decisions made upon 
this point. It is true that the language of the Code may be claimed to be 
mandatory, but it has been repeatedly held that, taking the whole of the 
provisions of the Code, it is apparent that it was not intended to deprive the 
judge of all discretion, but that it should be made to appear, by the papers 
upon which the order is founded, that there is some good reason for directing 
the examination to be had before the trial rather than at the trial. In the case 
at bar no such reason appears. It is true that it is said that, in view of the 
fact that the defendants are unfriendly to the interest of the plaintiff, the 
plaintiff cannot safely go to trial without first having caused the defendants 
to be examined. But this allegation is not founded upon any fact, but is simply 
the conclusion of the affiant. There is nothing to show that the defendants are 
any more hostile to the interest of the plaintiffs than the defendant in any 
other case against whom a claim is attempted to be enforced by suit. This 
statement, therefore, affords no reason.

In regard to the other statements contained in the affidavit, there is no 
allegation that the facts are not perfectly known to the plaintiff, nor that 
they could not have their examination of the defendants at the trial; under 
these circumstances it is apparent upon the face of the application that the 
desire of the plaintiffs is to anticipate, if possible, the defense, and not to 
obtain the testimony of the defendants for the purposes of use upon the trial. 
In fact, they nowhere state that they intend to use the testimony upon the trial.

In the case of Jenkins v. Putnam (106 N. Y., 272) it is distinctly held by the 
Court of Appeals that where this deficiency of allegation exists the court is 
justified in setting aside the order for the examination.

We think, therefore, that the application in no way complies with the rules laid 
down, controlling the granting of orders of this description, and that no case 
has been made out to justify the court in awarding to the plaintiffs this right 
before the time which they are at liberty to exercise it without the permission 
of the court, at the trial.

The order should be reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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