
    ABRAHAM L. BATTERSON, Plaintiff and Respondent, v. SAMUEL T. W. SANFORD, Defendant and Appellant.
    Before Sedgwick and Van Vorst, JJ.
    
      Decided April 7, 1879.
    Examination of parties to an action before trial.
    An objection to giving testimony, on the part of a defendant before trial, on the ground that it would tend to criminate the witness, should be heard and passed upon at the examination itself.
    It should clearly appear, from the affidavits and papers upon which the order is founded, that it was the purpose of the moving party to use the testimony upon the trial.
    
    Affidavits that state that the plaintiff cannot safely proceed to trial without defendant’s deposition, that the testimony is material and necessary to enable plaintiff to prepare for the trial of, and to safely try the action; yet nowhere states that it is the intention of the plaintiff to use the deposition or the testimony on the trial are defective. They imply an intention not to use the testimony on the trial.
    Appeal from an order denying the defendant’s motion to set aside an order for the examination of defendant before trial.
    
      
      P. H. Vernon, for appellant, among other things urged:
    In every application for an order for the examination of an adversary before trial, the statutory conditions must be strictly complied with, and in case an order should be inadvertently made, without such compliance on the part of the applicant, it should be vacated even without regard to the merits of the application. Section 872 of the Code of Civil Procedure requires ‘1 the person desiring to take a deposition,” to present an affidavit setting forth among other things as follows: “4. . . . that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action,” but the affidavit of W. I. Butler, Esq., the attorney for the plaintiff herein, upon which the order in question was granted, fails to comply with this requirement. It only alleges that the testimony and examination of the defendants “are material and necessary to the plaintiff to enable him to prepare for the trial of, and to safely try this action, and to obtain justice between the said parties,” and such an allegation is not sufficient (Beach v. Mayor, &c., 4 Abb. New Cas. 236-240, supreme ct., gen. term reversing, 3 Id. 113). In this case, Davis, P. J., says: “An affidavit to obtain an order for an examination before trial, must comply with the statute and state the particulars required. The order should not be granted when sought for, mainly not as a deposition to be used on the trial, but as a means of ascertaining information to enable the applicant to loolc up other witnesses.
    
    
      W. I. Butler, for the respondent.
   By the Court.—Sedgwick, J.

I am of opinion that the learned judge held correctly, in the circumstances of this case, that although an objection to giving evidence that might tend to criminate the witness should be heard and passed upon in the examination itself, it was not sufficient ground for setting aside the order.

But it seems to me that the affidavit for plaintiff did not show that the defendant was to be examined as a witness before trial. They disclosed no purpose of using his testimony upon the trial, and this, I think, should clearly appear in every like case.

The affidavits say that the plaintiff cannot safely proceed to trial, cannot properly prepare for trial without defendant’s deposition, that the testimony is material and necessary to the plaintiff to enable him to prepare for the trial of, and to safely try this action ; but they nowhere show an intention to use the deposition on the trial. The intention not to use it, then, is implied.

For this reason, the order appealed from should be reversed, with $10 costs, and disbursements to be taxed.

Van Vorst, J., concurred.  