
    Oscar J. Dennis, Respondent, v. John S. Tebbetts, doing Business under the Name of The Robert Pierce Company, Appellant.
    (City Court of New York, General Term,
    November, 1899.)
    Practice — Affidavit for examination before trial must comply strictly with the statute — Code Civ. Pro., § 872, subs. 1, 4.
    Where an application is made, during the pendency of an action, for the examination before trial of a party, and of a witness not a j party, the moving affidavit must show a strict compliance with the requirements of section 872 of the Code of Civil Procedure in regard to stating the name and residence of the party and of the witness respectively.
    Appeal from an order denying a motion to vacate an order for the examination of the defendant, John S. Tebbetts, as a party and Bobert Pierce as a witness before the trial.
    Case & Ludlow, for appellant.
    Menken Bros. (Percival S. Menken, of counsel), for appellant.
   Conlan, J.

The action is pending, so that the party applying for the order in the first instance must bring himself within the rule applicable to that part and those subdivisions of the Code relating thereto; the facts will sufficiently appear in the opinion.

The affidavit does not give the place of residence of either the parties or the attorneys. In Beach v. Mayor, 14 Hun, 79, it is said: “ Giving the address of the attorney is not sufficient, it must show ivhether it is his residence or office address.” The affidavit in this case neither gives the names of the attorneys as such, nor their places of residence or business; it does not even give the residence of the defendant, or that of the other party to be examined, other than to say “ the defendant, John S. Tebbetts, of Mo. 102 West 58th street, and agent, ¡Robert Pierce, of 720 Seventh avenue.”

In Crooke v. Corbin, 23 Hun, 176, it was distinctly held that the affidavit must state the name and residence of the person to be examined as the same is required by subdivision 4 of section 872 of the Code. It was held in Van Roy v. Harriott, 30 Hun, 77, that the statements contained in the affidavit, both as to the parties and the attorneys, were wholly insufficient, and that a statement that the attorney is A. B., of such a street and number, was not a compliance with what has been positively required by subdivision 1 of section 872, so as to entitle a party to the order in that behalf. The court said: “ The legislature have prescribed precisely what shall be done and no difficulty whatever can stand in the1 way of complying with these requirements. Where that is not done no right to examine the adverse party will be made out,” and cited the case of Dunham v. Mercantile Mutual Insurance Co., 6 Abb. N. C. 70. If the residence of the party were unknown, an attempt and failure to ascertain it must be stated.

In addition to all of the matters stated, which appear from an inspection of the record, we are not cited to a single authority upon the respondent’s brief to sustain him in his contention of the sufficiency of the allegations in his moving papers.

Finding, thus, a sufficient reason why the order appealed from should not have been made, we do not discuss certain other objectionable features presented by the moving papers, and are of the opinion that the order appealed from must be reversed, with costs, and the motion to vacate the original order granted, with ten dollars costs.

Fitzsimons, Ch. J., and McCarthy, J., concur.

Order reversed, with costs and motion granted, with ten dollars costs.  