
    Matter of the Application of A. D. Gains for an Order for the Examination of William H. Heath.
    (Superior Court of Buffalo — Special Term,
    December, 1895.)
    1. Depositions&emdash;Examination before trial&emdash;Affidavit.
    The affidavit for an order to examine a party before trial must state, that the testimony sought is material and necessary.
    3; ¡hum.
    A statement in the affidavit that “it is necessary that your petitioner have the privilege of examining said ” party is insufficient.
    3. Same&emdash;Qontemft.
    Where the moving papers do not contain the facts necessary to confer jurisdiction upon the court to grant the order, the party cannot he punished for contempt for refusing to answer questions put to. him upon the examination,
    Motion to punish defendant as for contempt for refusing to answer questions propounded to him upon an examination before trial.
    
      Herman Hennig, for plaintiff.
    
      Thomas Cary Welch, for defendant.
   Titus, Ch. J.

On the 30th day of November, 1895, Herman ' Hennig, Esq., an attorney of this court, presented the verified petition of A. I). Gains, together with an affidavit of service upon William H. Heath, and procured an order for the examination of said Heath, under sections 870 and 872 of the Code of Civil Procedure.

Heath is expected to be a party defendant to" an action to he brought by Gains for negligently performing a surgical operation upon said Gains for stone in the bladder.

Heath appeared before the referee, pursuant to the order, but refused, under the advice of counsel, to answer material questions put to him.

This application is made for an order adjudging Heath in contempt for such refusal.

It is claimed that the petition does not state sufficient facts to confer jurisdiction upon the judge who granted the order.

Section 870 of the Code of Civil Procedure provides : “ The •deposition of a party to an action pending in a court of record, or of a person who expects to be a party to an action about to be brought in such a court other than a court specified in subdivisions sixteenth, seventeenth, eighteenth and nineteenth of section two of this act,, may be taken at his own instance or at the instance' of an adverse party, or of a co-plaintiff or co-defendant, at any time before the trial, as prescribed in this article.” . '

So much of section 872 as is material here provides that the affidavit, shall set forth :

1. “If no action is pending, the names and residences of the expected parties thereto.”

3. “ The nature, of the controversy which is expected to be the subject thereof.”

4. “ The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application.”

6. “ That the person expected to be ■ the adverse party is óf full age and a resident of the state. * * * The street and street number.”

It appears from the papers that the applicant, at the timé' of the operation, was blind, and was put under the influence of anaesthetics, and has no knowledge of how the operation was performed or who performed it, or in what manner he received the. injury .of which he complains ; that his hip .was broken in some way, but how he does not know, and that the injury is of a serious and permanent character.

If the affidavit brings the case within section 872 of the Code, there is clearly a necessity shown for an examination of Dr. Heath, the expected party to the action about to be brought, and the granting of the order was within the fair and reasonable discretion of the judge making it. Merchants’ National Bank v. Sheehan, 101 N.Y. 176; Fatman v. Fatman, 45 N. Y. St. Repr. 859.

The defendant claims that no cause of action is stated against Heath nor any other person. While the affidavit is inartistically drawn, and the facts are not stated with that degree of precision which is customary in a complaint, yet, I think, the plain statement of facts contained in it shows that the plaintiff has a cause of action against Heath. It is alleged that Heath and others, whose names are unknown, performed the operation upon him, and that it was unskillfully and negligently performed The affidavit states in much detail the fact of his being taken to the hospital, and of his being operated upon, and of his subsequent ascertainment that his hip was broken. *

In another respect, I think, however, that the affidavit is defective. It does not state that the testimony is material and necessary,” as required by the Code. It is plain to be seen that the testimony is material and necessary, and in this respect complies with the requirement of rule 83, but it is nevertheless not a compliance with the requirement of the law. The' rule does not dispense with the necessity of alleging what is required in the Code to be stated in the affidavit, “ that the testimony of such person is material and necessary for the party making the application.” Beach v. Mayor, 14 Hun, 81; Chapin v. Thompson, 16 id. 53.

The affidavit contains no allegation which can be construed into a statement that the testimony sought to be obtained is material and necessary for the party making the application. It is alleged that “ it is necessary that your petitioner have the privilege of examining said Heath,” etc., but this is not equivalent to alleging that his testimony is material and necessary, and it was so held in Beach v. Mayor, supra.

The right of a party under this provision of the Code is strictly statutory, and the mode pointed out by the statute must be followed, otherwise no power is conferred upon the judge to make the order. Heishon v. Ins. Co., 77 N. Y. 278.

I am aware that it has been held in some cases that after an order has been made by a judge and served upon a party, the proper course to pursue is to move at once to set it aside. That -is undoubtedly the correct practice ; but here the court did not, by reason of a failure of plaintiff to state the neces.sary facts, get jurisdiction of the person of Heath, and was without power to make the order. As well might the judge .grant the order without any of the affidavits required by the statute to confer jurisdiction upon the court, and then claim that a person would be guilty of contempt in failing to obey •an order made under such circumstances. The trouble here is that the judge had no power to grant the order on the papers presented and never obtained jurisdiction over the per-. son of Heath, and .consequently the order was void and witlb out' force. This is not a mere irregularity in granting the, order which the party waives by appearing in obedience to .it, because, as has been stated, no sufficient facts Were stated in ■ the affidavit to confer jurisdiction to grant the order.

I think, therefore, that plaintiff’s motion must be denied, -and the order vacated and set aside, but without costs.

Motion denied and order vacated, without costs.  