
    Weston et al. v. Reich.
    
      (Supreme Court, General Term, Second Department.
    
    May 14, 1888.)
    Deposition—Examination op Dependant befobb Tbial—When Allowed.
    In an action to foreclose a mechanic’s lien, an order will be vacated which requires defendant to be examined as a witness before trial for the purpose of enabling plaintiff to prepare Ms case, as it is the intention of the Code, in relation to depositions, to permit a deposition to be taken only where the testimony is necessary and material for a party to use on the trial of the action.
    Appeal from special term, Kings county. Sugar M. Cullen, Justice.
    Action brought by Abijah Weston and another against Lorenz Reich to foreclose a mechanic’s lien. Plaintiffs procured an order requiring defendant to be examined before trial, and from an order denying defendant’s motion to vacate such order defendant appeals.
    
      Abram King, for appellant. P. P. Bellamy, for respondents.
   Dykman, J.

This is an appeal from an order denying a motion to vacate an order for the examination of the defendant before trial. The action is for the foreclosure of a mechanic’s lien for building material. The answer of the defendant, Lorenz Reich, whom the plaintiffs desire to examine, admits the delivery of the lumber substantially in accordance with the allegation of the plaintiffs’ complaint, and in the affidavit presented for the procurement of the order the attorney says the testimony of the defendant is necessary and material for the plaintiffs in the prosecution of this action, and the reason why it is material is that the various allegations and defenses contained in said defendant’s answer are inconsistent; that it is impossible to determine what part of the material alleged in plaintiffs’ complaint and bill of particulars the said defendant admits to have received, or whether he admits he has received any or not; that it is impossible for plaintiffs to know of what items of material they will have to prove the sale and delivery, and what witnesses will be necessary for them to produce upon the trial of this action to prove such sale and delivery. Further down in the affidavit, he says the plaintiffs cannot prepare or safely proceed to the trial of this action until such examination has been made. There is nothing to show any peculiar knowledge in the possession of the defendant, and from the nature of the case, and the transactions involved, it is entirely plain that the plaintiffs have full knowledge of all the facts. They know the material sold to the defendant, and all the details are peculiarly within their knowledge. The object of the plaintiffs, as disclosed by the affidavit, is to procure the testimony of the defendant, to enable them to prepare for the trial of the action; and although some judges have granted this order with more freedom than others, yet they have never granted it for such a purpose alone. Some necessity for the procurement of the depositions of the party should be shown to exist, and the plain spirit and intention of the Code is to permit the deposition to be taken only where the testimony is material and necessary for the party for use on the trial of the action. This department is fully committed to these views by many decisions, and it is believed they are supported by the adjudicated cases all over the state. The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order should be granted, with $10 costs.  