
    Hubbard v. Nearpass et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Witness—Examination of Party before Trial.
    Where, in an action against administrators, defendants procure an order for the examination of plaintiff before trial, in relation to personal transactions between him and the deceased, it is within the power of the special term to impose as a condition that the deposition so taken be read by plaintiff at the trial in case defendants do not read it.
    Appeal from special term, Orange county.
    This was an action by George J. Hubbard against the administrators of Eliza T. Stewart, deceased, and was founded on 12 promissory notes alleged ±o have been executed by her to plaintiff. The answer alleged that at the time of making the notes sued on the deceased was of unsound mind, and incapable of contracting. Also, that the notes were without consideration, and were given solely for plaintiff’s accommodation. Also, that, in the course of certain transactions between them, the signatures of the deceased came into plaintiff’s possession,, and that thereafter he wrote the notes in suit over such signatures, without her knowledge or consent. After the cause was at issue defendants filed an affidavit setting out the nature of their defenses, and alleging that it was necessary to their ease to have the testimony of the plaintiff as to the transactions with the deceased which bore on the execution of the notes; that they expected and intended to use plaintiff’s deposition upon, the trial, if allowed to take it; that they had reason to fear that plaintiff would not appear at the trial; and that, unless they could take his deposition before trial, it might be impossible for them to prove thefact that plaintiff was-not a holder of the notes in good faith, and for value. Upon this affidavit an order was made by the county judge of Orange county, directing that plaintiff be examined as an adverse party, and that his deposition be taken pursuant to Code Civil Proc. § 878, and appointing a referee for that purpose. Subsequently plaintiff filed an affidavit, alleging that he was a resident of Port. Jervis, in Orange county, where the action was brought, and where one of the defendants and their attorney resided. That he was a person of means and property in Port Jervis, and that he had been engaged in business therefor many years, as defendants well knew. That before the commencement of the action he had exhibited to defendant Uearpass, and to defendants’ attorney, all the notes in suit, and allowed them to inspect the same fully.. That he had at all times been ready and willing to allow them to examine all books, papers, and memoranda relating to the notes, and to furnish all the-information desired, but that they had never made any request therefor. That the intention of defendants in obtaining the general examination sought was simply to find out what plaintiff would be able to prove in support of his-action, so that they might secure rebutting evidence. That the order for his examination was not applied for until after the ease was noticed for trial; and that it was procured at such late day in bad faith, for the purpose of delaying the trial. That he had been directed by his attorney to be present at the trial, and that he had no other intention than to be personally present,, and to be a witness in his own behalf, and that he was willing to give security for his appearance. Upon an order to show cause, and after a hearing on these and other affidavits, an order was made by the special term vacating and setting aside the order for plaintiff’s examination before trial, “unless defendants stipulate within five days from date of the service of a copy of this order on defendants’ attorney that the deposition of plaintiff may be read on the-trial or retrials hereof by plaintiff, in case defendants fail to read the same.” Prom this order of the special term defendants appeal.
    
      G. E. Cuddeback, for appellants. John W. Lyon, for respondent.
   Pratt, J.

We are of opinion that the condition imposed upon the examination of the plaintiff at the instance of the adverse party was within the-power of the court, and we are not able to say that the power was indiscreetly exercised. Much may be said in favor of the view that, if the administrators-require the plaintiff to submit to an examination at their instance, it should be upon terms that such examination may be used in evidence upon the trial by plaintiff. Order affirmed, with $10 costs and disbursements.  