
    Henry Fluchtwanger et al., Resp’ts v. Leo C. Dessar, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March 29, 1889.)
    
    1. Examination before trial—Contents of affidavit—Code Civil Pro., § 872.
    The affidavit on an application for the examination of a party before trial should allege positively and not argumentatively and inferentially, the facts going to show the necessity of such examination.
    2. Same—When not proper.
    An order for the examination of the plaintiff as a witness will not he granted where the evidence sought is not necessary for the protection of the defendant’s rights.
    Appeal from an order of the special term granting a motion to dismiss the proceedings under an order for the examination of the plaintiffs before trial as witnesses in behalf of the defendant.
    
      John C. Gulick for resp’ts; Christopher Fine, for app’lt.
   Macomber, J.

The action is brought to recover a balance claimed to be due the plaintiffs on account of purchases and sales by them of stocks and bonds for the defendant.

The answer alleged that the transactions between the parties were only colorable and speculative, and not real; that no securities were in fact to be bought and sold, and that the transactions were void under the statute against gaming. It also pleads usury, fraud and false representations.

The learned judge at special term set aside the order for the examination of the plaintiffs as witnesses, upon the ground, mainly, that the evidence sought was not necessary for the protection of the defendant’s rights; that it was, in substance, an effort to obtain the plaintiffs’ proof of their case before trial, and that the agreements relied upon for the defense are set up positively in the answer as of the defendants own knowledge. Another objection wrhich might be stated is, that the affidavit upon which the examination was sought was not of the character required by the Code of Civil Procedure (§ 812), before such examination can properly be had. The affidavit is argumentative. It asserts that the testimony of- the plaintiffs is material and necessary for the reason, etc. * * * “That the said plaintiffs acting as they claim, as the agents of this deponent.” “And the said plaintiffs also alone knowing and the only persons known to this deponent, etc., who can testify.

Before a party can be permitted to obtain the evidence of his adversary before trial, he should present an affidavit, which alleges positively, and not argumentatively and inferentially the facts going to show the necessity of such examination.

For this and for the reasons stated by the judge at special term, the order should be affirmed with ten dollars costs and disbursements.

Yan Brunt, Ch. J., and Brady, J, concur.  