
    Thomas W. Vincent, Respondent, v. Jonas M. Kilmer, Appellant.
    
      Order for the examination befoi'e trial of a witness about to leave the State — what averments by the plaintiff’s attorney are on information and belief and are insufficient to sustain it.
    
    In an action brought to recover damages for personal injuries, an order for the examination before trial of a proposed witness should not he granted upon an j affidavit made by the plaintiff’s attorney, in which he alleges that such witness is the physician and surgeon who attended the plaintiff during his illness consequent upon the injuries in question; and that such witness was about to leave the State of New York, where such averments are made upon information and belief, derived and founded upon statements made to the affiant by the proposed -witness, and where no explanation is made of the failure to produce the proposed witness’ own affidavit as to the averments in question, it appearing that such witness was in the State of New York at the time when the attorney's affidavit was made.
    Chester and Houghton, JJ., dissented.
    Appeal by the defendant, Jonas M. Kilmer, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 6th day of June, 19.05, denying the defendant’s motion to vacate an order theretofore made by a justice of the Supreme Court, by which one Shellman was directed to appear before a referee and be examined as a witness on behalf of the plaintiff.
    
      T. B. Merchant and L. M. Merchant, for the appellant.
    
      F. N. Gilbert, for the respondent.
   Parker, P. J.:

The affidavit upon which the judge’s order of May 29, 1905, requiring Dr. Shellman to- be examined as a witness on the part of the plaintiff in this action, was made by the plaintiff’s attorney, who claimed the right to such an examination under, the provisions' of section 872 of the Code of Civil Procedure, and stated that the action was brought to recover damages for injuries sustained by the plaintiff on February 11,1904, through the negligent acts of the defendant ; that one Arthur P. Shellman, then a resident of Binghamton, in this State, was a physician and surgeon, and that he had attended the plaintiff professionally during the greater part of the time plaintiff had been confined to his bed and house because of his said injuries; that said Shellman was about to leave the city of Binghamton to reside in St. Louis, Mo., and would be absent for more than a year, and would not be able to attend the trial of such action; that unless he was examined conditionally before his departure plaintiff would lose the benefit of his testimony. The affidavit- further stated that the deponent was informed as to each of the foregoing facts by the said Shellman himself, and it also stated that the testimony of such Dr. Shellman was material and necessary for the plaintiff to sustain his cause of action against the defendant; and also that without it he could not safely proceed to -the trial of the action. It is manifest that the statements that Dr. Shellman was a physician and surgeon; that he had -attended the plaintiff, and that he was about to leave the State, were sworn to by the deponent on information and belief onty. He derived his knowledge from what Shellman told him, and the only information which he conveyed to the judge upon either of such facts was that Shellman told him so. Evidently such declaration on- Shellman’s part proved nothing to the judge who was asked to issue this order. (Mowry v. Sanborn, 65 N. Y. 584.)

There was not, therefore, any proof before him that; Shellman was a physician and surgeon or had ever attended the plaintiff as such, or that he. really intended to leave the State. It appeared from the affidavit that Shellman was then in Binghamton, and his affidavit could easily have been produced before the- judge to show that he had in fact been the attending physician of the plaintiff, and, therefore, could testify as to his condition and the injuries from which he was suffering, although it is difficult to see how that would disclose any fact necessary to sustain plaintiff's “cause of action against the defendant,” but if he did have knowledge of any ;fact that tended to sustain the cause of action his affidavit to that effect and not his mere statement to another was the proper proof of that fact to be used before .the judge granting the order. No explanation whatever is made or attempted to be made why Shell-man’s own affidavit was not produced upon these questions, and, therefore, the affidavit by plaintiff’s attorney was not sufficient to sustain the order. (Matter of Bronson, 78 Hun, 351; New York Press Club v. Loyd, 12 Misc. Rep. 210.)

All concurred, except Chester and Houghton, JJ., dissenting, on the ground that the fair construction of the moving affidavit is that the proposed departure of the witness from the State is the only fact stated on information and belief, and the source of information is given.

Order reversed,' with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  