Fogg v. Fisk

Daniels, J. — The affidavit on which the order was made very fully complies with all the requirements prescribed by section 372 of the Code, unless it may be that contained in the fourth subdivision of this section. And the appeal has been taken for the reason that the affidavit was considered defective in this respect. That subdivision requires it to be shown by the affidavit that the testimony of the person to be examined is material and necessary for the party making the application, or the prosecution or defense of the action. And by the affidavit detailing the circumstances as to which proof will be required, which it is expected the defendant will be able to give, the materiality of the evidence desired to be obtained has to a reasonable certainty been established, [352] and the minute statements made upon this subject are followed by the further ¡statement that, as deponent is advised by his counsel and verily believes, “ the examination and testimony of said defendant Fisk relative to the issues herein are both material and necessary to the plaintiff for the prosecution of this action and for the trial thereof.” From these statements it may reasonably be inferred that a bona fide intention exists on the part of the plaintiff to obtain the evidence of the defendant for the purpose of producing and using it as a part of the proof of his case upon the trial of the . action. It would undoubtedly have been better if this intention had been expressed in more direct terms, but as it may be gathered from the statements which have been made the plaintiff is entitled to the benefit of such a construction. It is undoubtedly true that the exercise of the authority in question should be carefully guarded, for in a large majority of instances where the testimony of the adverse party is taken under such an order the object is simplyto discover what he-may be able to state as the facts of the controversy, without' any intention whatever to read the evidence upon the trial. And that practice it was not the purpose of this provision of the Code to permit. But from the statements made in this affidavit it may reasonably be concluded that the object of the party is to obtain evidence in support of his own case, without which he will not be able to proceed to the trial of the-action. In this respect it differs from those relied upon in support of the appeal, for in Beach agt. The Mayor, &c. (4 Abb. N. C., 236) the object was to ascertain the names of witnesses who might be expected would be produced upon the trial; and in Chapin agt. Thompson (16 Hun, 53) it was to discover simply what the defendant would probably swear to; and in Creek agt. Corbin (33 Hun, 176) no fact or circumstance showing the examination to be material or necessary was specified. The present case stands in favorable contrast with those which were determined by the courts in these and other instances. [353] It may be that as to some of the matters to-which the-examination is expected to be directed that the defendant will not be obliged to answer. But if the examination should take that range it will be the province of the court,, when the. testimony is taken, to afford the witness the protection he may be entitled to under the rules of law applicable to the- subject. The.-order should be affirmed,, with the usual costs and disbursements.. Beady, J., concurs..