Dorf v. Walter

McCarthy, J. This is an appeal from an order directing the defendant James N. Walter to appear before one of the justices of this court at special term, and be examined and his deposition taken in pursuance of sections 870 and 872, Code of Civil Procedure. The application was made by the plaintiff, for the purpose of being able to prepare an amended complaint. The affidavits on the part of the plaintiff disclose a very peculiar situation, and were .-sufficient in form and purpose to demand on the part of the justice to whom they were presented the exercise of a sound discretion. The granting of such an order rests within the sound discretion of the -court. Jenkins v. Putnam, 106 N. Y. 276, 12 N. E. Rep. 613. It is claimed that this examination is not material and necessary, but merely for the purpose of annoying and harassing the defendant Walter. We are of opinion that the examination is material and necessary. As to the -question of annoyance, we think it is for the judges now, under the rules of .practice and by the rulings at the examination, to keep the plaintiff within ■ the proper bounds, and to ward off from the defendant all inquiry which is vain or curious. Raymond v. Brooks, 59 How. Pr. 383. Folger, J., in Glenney v. Stedwell, 64 N. Y. 122, says “that a plaintiff in an action pending tmay examine the adverse party on oath before the service on him of a complaint, and for the purpose of obtaining the facts on which to frame a com435 I'laint. ” Barrett, J., in Brisbane v. Brisbane, 20 Hun, 49, quoting from Folger, J., in above case, says “the expression in section 391 of the old Code, ‘at any time before the trial,’ which in the case cited (Glenney v. Stedwell) was deemed to cover an examination before as well as after issue, is also to be found in section 870, Code of Civil Procedure.” We therefore think no error was committed, and that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.