
    Ralph W. Grout, Resp’t, v. Henry H. Strong, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed November 25, 1892.)
    
    Depositions—Examination before trial.
    Where the testimony sought is solely within the defendant’s control and knowledge, and examination of the defendant is necessary to enable the plaintiff to maintain his action on the trial, such examination may properly he ordered.
    Appeal from order denying motion to vacate an order for the examination of defendant before trial.
    
      Jerome & Nason, for app’t; Thomas F. Byrne, for resp’t.
   Fitzsihons, J.

This is an appeal from an order denying a motion to vacate an order for defendant’s examination before trial. It appears from the affidavit upon which said order (for defendant’s examination) was granted that the testimony desired is solely within the defendant’s control and knowledge, and that the same is necessary to enable the plaintiff to maintain this action upon the trial. Justice Danforth, in Herbage v. The City of Utica, 109 N. Y., 82; 14 St. Rep., 845, says: “that a party litigant may, in the discretion of the judge to whom application is made under §§ 870, 872, 873 of the Code, have a general examination of his adversary as a witness in the cause as well before as at the trial.”

A careful examination of the appeal book convinces us that the order appealed from was properly granted, and must, therefore, be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.  