
    James Chaskel, App’lt, v. Metrolitan Elevated Railway Company et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Examination befobe tbial—When obdeb vacated.
    „ To obtain the examination of a defendant before trial, it must be made to appear that the plaintiff has reason to apprehend that he cannot have this examination at the trial, or that it is important to have his examination before trial, and where an order has been made and it appears that the information sought after may be obtained from primary sources, the order should be vacated.
    Appeal from an order vacating order for the examination of the defendant Field.
    
      Lewis Dansers, for app’lt; Davies & Rapallo, for resp’ts.
   Van Brunt, P. J.

The order appealed from is clearly right under the rules laid down governing the examination of parties before trial contained in the case of Jenkins v. Putnam (106 N. Y., 272). In that case it is distinctly held that certain facts must be made to appear to the judge before such an examination should be allowed, amongst which is the fact that the plaintiff has reason to apprehend that he cannot have the examination of the party at the trial or < that it is important for him to have the testimony of the party to be examined before trial, neither of which allegations appear in the affidavit upon which the application in this case was founded. There seems to be no reason, whatever, why the examination should be allowed. It appears from the plaintiff’s brief that the claim is that a director of a corporation is primarily liable for the acts working a tort by the corporation and if he is correct in that respect, then he needs no examination of any of the defendants in that regard, showing their assent to the acts done by the corporation.

As to the claim of proving whether the defendant Field was a director or not, the primary source for the proving of such facts are the minutes of the corporation and until it appears that there are no minutes, the parties should be relegated to that source of information rather than harrassing a defendant unnecessarily by an order for his examination.

The order should be affirmed, with ten dollars costs and disbursements.

Brady and Barrett, JJ., concur.  