
    George L. Bock, Individually and as Administrator, etc., of Cora Bock, Deceased, and as Executor, etc., of Henry Bock, Deceased, Respondent, v. Henry Bock, Appellant.
    First Department,
    January 22, 1909
    Deposition — examination before trial — sufficiency of moving papers.
    As the purpose of an examination before trial is to obtain evidence to use upon the trial, it must be made to appear that the moving party intends to use the evidence upon the trial. An order for an examination of a party before trial will not be granted on an affidavit alleging merely that the deponent intends to preserve and use the testimony, that the purpose of the examination is to properly prepare for trial and to prepare.and obtain other evidence to meet the defenses.
    Appeal by the defendant, Henry Bock, from an order of the Supreme Court, madé at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of November, 1908, denying the defendant’s motion to vacate an order for his examination before trial.
    
      Meyer Levy, for the appellant.
    
      Walter H. Cragg, for the respondent.
   Scott, J.:

Appeal from order denying motion to vacate order for examination of' defendant before trial. The plaintiff sues iri three capacities^-as an individual, as administrator of the estate of his mother, Cora Bock, deceased, and as executor of the will of his father, Henry Bock, deceased.

The defendant is a brother of plaintiff, and the complaint alleges that at the death of Cora Bock she was possessed of and entitled to the possession of personal property, which upon and after her death came into possession of defendant, who has ever since retained the same. The object of the action is to obtain a discovery and accounting. It seems probable that the plaintiff, may be entitled, upon a proper. affidavit, to examine the defendant, at least as to what property came into his hands, but his present affidavit is wholly insufficient.

The purpose of an examination before trial is to obtain evidence to use upon the trial (Koplin v. Hoe, 123 App. Div. 827), and,' therefore, it is necessary that it be made to appear that the party applying for' the examination intends to use it upon the trial. Nothing of the sort appears here. All that is said is that “ deponent intends to preserve and use such testimony.” The real purpose: of taking the examination is elsewhere stated to be “ to properly prepare for trial,” and “ to prepare and obtain other evidence to meet the defense herein.” Neither of these reasons is sufficient to justify the examination of an adverse party. (Diefendorf v. Fenn, 125 App. Div. 651.) While recent decisions have swept aside many of the technicalities which once stood in the way of the examination of adverse parties, it has not been intended thereby to overrule the express provisions of the Code, or to encourage the granting of orders for such examinations upon loose and insufficient affidavits. The order appealed from must be reversed, with ten dollars costs and disbursements to the appellant, and the motion to vacate granted, with ten dollars costs, without prejudice to a renewal of the application for an examination upon proper allegations.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to renewal. Settle order on notice.  