
    COOK v. NEW AMSTERDAM REAL-ESTATE ASS’N et al.
    (Supreme Court, General Term, Second Department.
    March 5, 1895.)
    Examination of Party before Trial—Affidavit.
    In an action to foreclose a mortgage, an affidavit by defendant’s attorney in support of an application for the examination of plaintiff before trial is defective where it states merely that the attorney had been informed that the mortgage was not bona fide; that it' was not given 'for a valuable consideration, but to enable some of the stockholders of the mortgagor to obtain title to the premises, without stating the source of the attorney’s information.
    Appeal from special term, Westchester county.
    Action by Oliver W. Cook against the New Amsterdam Real-Estate Association and the Albany National Blank to foreclose a mortgage. From an order denying a motion to vacate an order directing plaintiff’s examination before trial, plaintiff appeals. Reversed.
    Argued before BROWN, P. J., and CULLEN, J.
    Henry W. Smith, for appellant.
    Amasa J. Parker, Jr., "for respondent Albany Nat. Bank.
   BROWN, P. J.

The affidavit upon which the order for the plaintiff’s examination was granted was defective in not showing the materiality of the plaintiff’s testimony to the knowledge of the attorney who made the affidavit, or stating the source of' the attorney’s information, and the reason for not producing the affidavit of his informant. The affidavit states that issue had been joined in the action by the service of an answer by the Albany Bank, but it does not state the nature of the defense. It states that the attorneys had been informed that the mortgage was not a bona fide mortgage; that it was not given for a valuable consideration, but

made for the purpose of enabling some of the stockholders of the real-estate association to obtain title to the mortgaged property by foreclosure proceedings upon a claim not in existence; but it does not state that such facts were known to the attorney making the affidavit, nor does it state the source of the information. Such an affidavit is fatally defective. Hale v. Rogers, 22 Hun, 21; In re Bronson, 78 Hun, 351, 29 N. Y. Supp. 112. The order must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.  