
    Feuchtwanger et al. v. Dessar.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    Practice in Civil Cases—Examination of Party before Trial—Affidavit.
    An affidavit under Code Civil Proc. N. Y. § 872, to obtain an order for the examination of plaintiffs before trial, must allege positively, and not argumentatively and inferentially, the facts going to show the necessity for such examination.
    Appeal from special term, Hew York county.
    Action by Henry Feuchtwanger and others against Leo 0. Dessar, to recover a balance claimed to be due on account of certain transactions in stocks. From an order dismissing proceedings under an order for the examination of plaintiffs before trial, defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Macomber, JJ.
    
      Christopher Fine, for appellant. John.G. Gulick, for respondents.
   Macomber, J.

The action is brought to .recover a balance claimed to be due the plaintiffs on account of purchases and sales by them of stocks and bonds for the defendant. The answer alleged that the transactions between the parties were only colorable and speculative, and not real; that no securities were in fact to be bought and sold; and that the transactions were void under the statute against gaming. It also pleads usury, fraud, and false representations. The learned judge at special term set aside the order for the examination of the plaintiffs as witnessés upon the ground, mainly, that the evidence sought was not necessary for the protection of the defendant’s rights; that it was, in substance, an effort to obtain the plaintiffs’ proof of their case before trial; and that the agreements relied upon for the defense are set up positively in the answer as of the defendant’s own knowledge. Another objection which might be stated is that the affidavit upon which the examination was sought was not of the character required by tlie Code of Civil Procedure (section 872) before such examination can properly be had. The affidavit is argumentative. It asserts that the testimony of the plaintiffs is m;.terial and necessary for the reason, etc., “that the said plaintiffs, acting, as they claim, as the agents of this deponent.” “And the said plaintiffs also alone knowing, and the only persons known to this deponent,” etc., who can testify. Before a party can be permitted to obtain the evidence of his adversary before trial he should present an affidavit which alleges positively, and not argumentatively and inferentially, the facts going to show the necessity of such examination. For this and for the reasons stated by the judge at special term the order should be affirmed, with $10 costs and disbursements. All concur.  