
    Winfield Waters, App’lt, v. Christopher C. Shayne, Resp’t.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Examination before trial — When will not be granted.
    Where the facts are such as to warrant an inference that defendant’s evidence can be secured by obtaining his attendance as a witness on the trial, and that it is not necessary for plaintiff to obtain it before that time, the courts will not require the defendant to submit to an examination before trial.
    Appeal from an order' vacating an order for the examination of the defendant as a witness before trial.
    
      Theodore B. Gates, for app’lt; Blumenstiel <& Sirsch, for resp’t.
   Daniels, J.

This action is upon a bond executed by the defendant in June, 1875, for the payment of the sum of $900. A discharge in bankruptcy, issued in 1881, has' been presented by the answer as a defense. The plaintiff proposes to impeach this discharge for fraud in the conveyance of land in the state of New Jersey by. the defendant to a grantee, who immediately thereafter conveyed the same premises to the wife of the defendant These conveyances preceded the filing of the petition in bankruptcy, and the consideration mentioned in each deed is the sum of one dollar. All these facts are matters of record, and no necessity exists for examining the defendant as a witness to prove them. But the affidavit of the counsel for the plaintiff, on which the order was made for the examination, states it to be material and necessary for the plaintiff to ascertain whether the defendant retained any interest or equity in the premises, or whether the conveyances were not made to cover or protect the property conveyed against the claims of creditors, or the claim on which this action has been brought.

But why that may not be as well ascertained by the examination of the defendant on the trial, has not been stated. The inference warranted by the facts is that the defendant’s evidence can be secured by obtaining his attendance as a witness at the trial, and that it is not necessary for the plaintiff to obtain it before that time. And where the facts are of "that description, it is not the practice of the courts to direct the party to submit to an examination as a witness at the' instance of his adversary before trial. Williams v. Foster, 16 Civ. Pro., 429; 22 N. Y. State Rep., 507.

This defect in the plaintiff’s case, without considering the other objections urged against the appeal, requires that the order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.  