
    BEACH v. MAYOR, &c. OF N. Y.
    N. Y. Supreme Court, First Department; Chambers,
    November, 1877.
    Examination of Party before Trial.—Party.—Witness.—Sections 870, 873-874, of Code of Civ. Pro.
    The affidavit to obtain an examination before trial under sections 870, 873-874, of Code of Civ. Pro., need not pursue the exact language of the statute, but is sufficient if in substantial compliance therewith.
    
    Form of a sufficient affidavit.
    Motion by defendant to vacate an order to examine a party before trial.
    George Beach, an infant, by Joseph Beach his guardian, sued the Mayor, &c. of N. Y., for $5,000 damages for injuries sustained by reason of the unsafe condition of the pavement in Ninth avenue, in said city. After the cause was at issue, the defendants obtained an order for the examination of the plaintiff, under sections 870, 872, 878, and 874, of the Code of Civil Procedure.
    The affidavit on which the order was obtained is as follows:
    
      \Tittepfthe cause.]
    
    “Thomas P. Wicks, being duly sworn, says that he is an attorney and counselor at law, and employed in the office of the counsel to the corporation.
    “That this action is brought to recover the sum of $5,000 on account of sundry injuries which plaintiff alleges he sustained while riding or driving through Ninth avenue, between Fifty-fifth and Fifty-six streets, in the city of New York, by reason of the alleged unsafe and dangerous condition of the pavement of said avenne.
    “ That the answer herein sets up a general denial, and in addition thereto avers upon information and belief, that the said alleged injuries were caused solely by the carelessness and negligence of the plaintiff.
    “ That all the facts and circumstances connected with the happening of the alleged accident, the hour of the day or night at which it is said to have occurred, the names of the bystanders or witnesses, if any there were, and the nature and extent of the plaintiff’s alleged injuries, are peculiarly within the knowledge of the plaintiff, and not at all within the knowledge of defendants’ department of law; and that in order to enable these defendants to prepare properly for the defense of this action, -it will be necessary for them to examine the plaintiff before trial under the provisions of sections 872, 873, &c., of the Code of Civil Procedure.
    “ That this action is at issue-and about to be tried; that the plaintiff herein appears by his attorneys, Messrs. Winfield, Leeds and Morse, of No. 120 Broadway, N. Y., and deponent further says upon information and belief that the plaintiff resides within the city and county of New York.”
    The defendants moved to vacate this order, on the ground that the the foregoing affidavit did not state facts sufficient to warrant the court in granting it.
    Winfield, Leeds & Morse, for motion.
    — I. The affidavit is not sufficient, because it does not state that plaintiff’s testimony is or will be material or necessary for the defendant, nor that such testimony vs both “material and necessary.” If the complaint is not sufficiently definite and certain, it should he remedied under section 546.
    II. The requirement in section 872, subd. 4, of an affidavit setting forth special facts, to wit: that the testimony was material and necessary for the party, is meaningless, unless it is to follow that such facts are to be disclosed as will enable the judge to see that the testimony is both material and necessary. Where facts must be stated in order to compel the exercise of the judicial function, they must not be mere assertions, but such statements as will enable the judge to act understandingly (Glenney v. Stedwell, 64 N. Y. 120, 126; McIntyre v. Mancius, 16 Johns. 592; Marsh v. Davison, 9 Paige, 580 ; Bailey v. Dean, 5 Barb. 297.
    
    III. The affidavit does not state any facts as to which plaintiff is to be interrogated, so that the court may judge as to them materiality, and is hence defective (Elmore v. Hyde, 2 Abb. New Cas. 129).
    
      William C. Whitney, opposed.
    
      
      
         See Webster v. Stockwell, p. 115 of this vol, and note.
    
   Lawrence, J.

The affidavit on which the order for the examination of the plaintiff was obtained is not expressed in the exact language of the statute, but is, as it seems to me, in substantial compliance with the statute, and therefore, I must decline to vacate the order.

Motion denied, but without costs*  