
    Williams et al. v. Folsom et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    1. Witness—Examination before Trial.
    Though Code Civil Proc. N. Y. § 873, provides that, on presentation of a prescribed affidavit, the judge “must grant an order for the examination” of a party before trial, it must appear that there is good reason for granting the examination before, rather than at, the trial. It was not intended to deprive the judge of all discretion.
    3. Same—Affidavit.
    The application will not be granted unless the affidavit avers that the facts are not perfectly known to the applicant, or that he could not have the examination of the adverse party at the trial, or that he intends to use the testimony on the trial.
    Appeal from special term, New York county.
    Action by Louisa Williams, Helen G. Ward, and Clara A. Helm against Samuel D. Folsom, Thomas W. Folsom, and William H. Folsom to recover $10,500, as part of the proceeds of the sale of an apartment house in the city of New York, the sale of which the plaintiffs had intrusted to the defendants as professional real-estate agents. The complaint alleges among other things, in substance, that the defendants devised a scheme to buy in the property themselves, or for their own benefit, at an inadequate price; that, in pursuance of this scheme, they withheld from the plaintiffs offers which they received for the property, and other information, and finally induced plaintiffs to sell the property to them at the grossly inadequate price of $97,000; that although the apparent purchaser was one Margaret Folsom, a wife of one of the defendants, she was not a purchaser in good faith, but merely acted for the benefit of the defendants; that, within 48 hours after the contract to sell to said Margaret Folsom had been executed by the plaintiffs, the property was resold for $110,000, and that plaintiffs are entitled to the proceeds of this sale, and the profits which defendants made by the transaction. A motion to vacate an order for the examination of defendants before trial was denied, and defendants appeal. For opinion on motion to vacate a former order for the examination of defendants before trial see 3 N. Y. Supp. 681.
    Code Civil Proc. N. Y. § 873, relating to examination of witnesses before trial, provides that the judge to whom the required affidavit is presented “must grant an order for the examination, if an action is pending. If no action is pending, he must grant it if there is reasonable ground to believe that the action will be brought, ” etc.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Davenport, Smith & Perkins, (George P. Smith, of counsel,) for appellants. Carter, Hughes & Cravath, (Paul D. Cravath, of counsel,) for respondents.
   Van Brunt, P. J.

It is apparent, from the brief of the respondents in this case, that the ground upon which the order is sought to be upheld is that there is no need for a party making an application for the examination of his adversary before trial to show any special circumstance making it important to take the testimony of such adversary before trial instead of at the trial. We think this is an entirely erroneous view to take of the decisions made upon this point. It is true that the language of the Code may be claimed to be mandatory, but it has been repeatedly held that, taking the whole of the provisions of the Code, it is apparent that it was not intended to deprive the j edge of all discretion, but that it should be made to appear by the papers upon which the order is founded that there is some good reason for directing the examination to be had before the trial rather than at the trial. In the case at bar no such reason appears. It is true that it is said that, in view of the-fact that the defendants are unfriendly to the interest of the plaintiffs, the plaintiffs cannot safely go to trial without first having caused the defendants to be examined. But this allegation is not founded upon any fact, but is simply the conclusion of the affiant. There is nothing to show that the defendants are any more hostile to the interests of the plaintiffs than the defendant in any other case, against whom a claim is attempted to be enforced by suit. This statement, therefore, affords no reason.

In regard to the other statements contained in the affidavit there is no allegation that the facts are not perfectly known to the plaintiffs, nor that they could not have their examination of the defendants at the trial. Under these circumstances it is apparent upon the face of the application that the desire of the plaintiffs is to anticipate, if possible, the defense, and not to obtain the testimony of the defendants for the purposes of use upon the trial. In fact they nowhere state that they intend to use the testimony upon the trial. In the case of Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. Rep. 613, it is distinctly held by the court of appeals that, where this deficiency of allegation exists, the court is justified in setting aside the order for the examination. We think, therefore, that the application in no way complies with the rules laid down controlling tlje granting of orders of this description, and that no-case has been made out to justify the court in awarding to the plaintiffs this right before the trial which they are at liberty to exercise without the permission of the court at the trial. The order should be reversed, with $10 costs and disbursements. All concur.  