
    Ridert v. Blumenkrohn.
    (City Court of New York—General Term,
    October, 1892.)
    An order for the examination of a party defendant, granted upon the application of a foreign plaintiff, and based upon an affidavit showing the materiality of the evidence and the necessity for such examination, will be sustained.
    Appeal by defendants from order denying motion to set aside order for examination of said defendants as witnesses before trial. The opinion states the case.
    
      Simpson & Wolf, for plaintiff (appellant).
    
      Blumensteil & Hirsch, for defendants (respondents).
   Ehrlich, Ch. J.

The plaintiff resides in Saxony, and the defendants reside and do business in New York. The order requires the defendants to appear and submit to an examination as witnesses in behalf of the plaintiff in respect to the issues raised by the pleadings. The affidavit upon which the order was granted, complies with the formal requirements of the Code. It shows the materiality of the evidence and the necessity of the examination in advance of the trial. Considering the fact that plaintiff resides in a foreign land, that he could not with any certainty anticipate what the defendants would testify to at the trial, their examination was both prudential and necessary to meet the exigencies of the trial. The fact that the plaintiff intended to use the deposition at the trial is not expressed in so many words, yet the purpose to use the same thereat so clearly appears, that the omission is supplied by necessary intendment, and so long as the fact appears, the rule is satisfied.

The rule in regard to these examinations has been liberally extended by the courts (Herbage v. City of Utica, 109 N. Y. 81; Goldberg v. Roberts, 5 Civ. Proc. Rep. 96), and it can, in furtherance of justice, be applied to this case.

We find no error, and the order appealed from must be affirmed with costs.

Order affirmed.  