
    George T. Hay, et al., Plaintiffs, v. George Zeiger, et al., Defendants.
    (Supreme Court, Kings Special Term,
    December, 1899.)
    Examination of party before trial.
    Where the testimony of a party is shown to be material and necessary to his adversary, on the trial of a pending action, the court will' order the party to submit to an examination before trial, although he can be present at the trial.
    Motion to vacate an order for the examination of a party defendant before trial in an action pending, obtained by the opposite party; the objection being that it is not shown in the affidavit that the party cannot be present at the trial, and that it is hot necessary to examine him.
    C. J. Kracht for motion.
    Cowen, Wing & Putnam opposed.
   Gaynor, J.:

The learned counsel for the defendants finds no trouble in citing decisions which seem to require that this order be vacated. They arose in the First Judicial Department, and others which also arose there could .be added to his list. But they have not been followed in the rest of the state, and are not generally deemed binding by bench or bar. It is difficult to see why such a lot of technicalities should be thrown in the way of the examination before trial of a party to the action by the adverse party. The statutory provisions for such examination seem to justify no such technicalities (Code Civ. Pro. secs. 870 to 874). It is said in decisions, and is now said by counsel for the defendants, that such examinations must not be “ fishing excursions ”. If a party wants to use the testimony of an opposite party to prove a certain fact within his knowledge, I do not know why he should not be permitted to probe his conscience for it, or fish ” for it if the phraseology of certain decisions must be followed. What the. courts are after is the truth, and a system of technicalities and pit falls should not be put in the way. The examination of a party may often simplify a trial by doing away with the necessity of calling a number of witnesses. That the party will be present at the trial is no reason for not taking his examination before trial. Subdivision 5 of the said section 872, requiring it to be shown that the person to be examined will not be able to attend the trial, does not apply to the examination of a party but only to witnesses. It is enough that the testimony of a party be shown to be material and necessary on the trial to the party seeking his examination, and that is the case here. The provisions of the Code say so, and the courts have no right to say otherwise. Hor do I know of any authoritative decision saying otherwise.

The motion is denied with $10 costs.

Motion denied, with ten dollars costs.  