
    Bandmann v. Jones.
    (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    Depositions—Of Pabty—Application.
    An application by defendant to examine plaintiff, in an action for libel, before trial, under Code Civil Proc. N. Y. §§ 870, 878, relating to taking depositions of parties before trial, and the contents of the affidavit therefor, which states that the answer intended to be made is the general denial, and that the facts set forth in the alleged libel are true, and that it is necessary to examine plaintiff concerning these facts, without averring that they are not within defendant’s knowledge, or readily attainable by him, is insufficient.
    Appeal from special term, New York county.
    Action for libel by Daniel E. Bandmann against George Jones, as treasurer of the New York Times, a joint-stock association. Defendant obtained an order for the examination of plaintiff before trial, which plaintiff moved to vacate. His motion was denied, and he appeals. Code Civil Proc. H. Y. § 870, relates to taking the deposition of a party to an action before trial, and section 872 specifies what shall be the contents of the affidavit for such examination.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Benno Loewy, for appellant. Townsend, Byett <& Einstein, for respondent,
   Daniels, J.

The action has been brought for "the publication of an alleged libel in the Hew York Times, and the order was made for the examination of the plaintiff, upon the statement that his testimony is material and necessary for the defendant in the defense of the action, and to enable him to prepare-his answer. The facts concerning which it is stated to be necessary to examine the plaintiff are those which are set forth in the alleged libelous publication, and the answer intended to be made is stated to be that of a general denial, and that the facts set forth in the alleged publication are true. But-neither of these statements, nor all of them taken together, indicate the existence of any necessity for examining the plaintiff as a witness in the action before trial. It has not been set forth that the facts upon which the answer is designed to be made are not at present within the knowledge of or otherwise readily attainable by the defendant. The presumption, on une contrary, is that they must be within his knowledge, or had been obtained by him, or others in the employment of the association, before the time when this publication was made. From the statement made in his own affidavit, and that of the attorney added to it, they can be accepted as entirely truthful and reliable, and still no probable necessity for the examination of the plaintiff in this manner has been disclosed. The defendant certainly has the ability to deny the allegations in the plaintiff’s complaint without such an examination, and so if the ¡acts have come to his information justifying the publication he may also allege the truth of the publication, without in any manner being dependent upon evidence to be derived from the plaintiff. If this cannot be done, the least that can be expected is that the affidavits should disclose such a state of facts. There can be no difficulty, in an application of this description, for the party, in whose behalf it may be made, to state why it becomes necessary to examine the opposite party; and, if the applicant has not already the information to be acquired, that readily admits of a distinct statement to that effect. It was equally so as to the necessity of acquiring further information for the purposes of the proposed pleadings, or to prepare the case for trial. And the additional statement may also readily be made where the facts will justify it, showing the party’s dependence upon evidence to be procured in this manner for the attainment of one or the other of these objects. As much as that is required by the authorities applicable to applications of this character. It is true that in the case of Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. Rep. 62, the broadest possible discretion has been stated to exist for the making of this class of orders. But this decision does not appear to be in harmony with what was decided in the same court in Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. Rep. 613, where it was stated in the opinion followed by the court that “the affidavit is required to disclose the nature of the action, and to set forth that the testimony of the party is material and necessary, and the judge must be able to see from the facts stated that the testimony is material and necessary. If from the nature of the action and the other facts disclosed he can see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be- obliged, nevertheless, to make the order. Here there is no allegation in the affidavit showing that the facts were not perfectly known to the defendant, or that it was important for him to have the testimony of the plaintiff before the trial, or that he had any reason to apprehend that he could not have Ins examination at the trial.’’ The construction in this manner to be placed upon the provisions of the Code are in strict harmony with the decisions which have generally been made by this court upon the same subject, and seem to meet the necessity of the case, rather than the wideand unlimited range of discretion mentioned in the later authority. In Strakoseh v. Publishing Co., 6 N. Y. Supp. 246, an application, supported by affidavits substantially the same as those used in this action, was held not to be sufficiently sustained for the support of an order for the examination of the plaintiff. And Balcom v; Adams, 2 N. Y. Supp. 255, supports this construction of the law, and so does Kirkland v. Moss, 11 Abb. N. C. 421; Weston v. Reich, 1 N. Y. Supp. 412; and Williams v. Folsom, 5 N. Y. Supp. 211. And Dudley v. Publishing Co., 6 N. Y. Supp. 388,in no manner extends these rulings; for there it was shown to have become necessary, by the examination of the plaintiff, to identify the letter which was published with the one written by him. Under the rule which has been settled and followed, although not uniformly, yet by most of the authorities, the order which has been made in this case cannot be sustained, but it should be reversed, with the usual costs and disbursements.

All concur.  