
    Daniel E. Bandmann, App’lt, v. George E. Jones, Treasurer, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    Examination before trial—Libel—Requisites of affidavit.
    In an action for libel, application for an order to examine plaintiff was made on an affidavit stating that his testimony was material and necessary for the defendant in the defense of the action, and in preparing his answer; that it was necessary to examine him as to the facts set forth in the alleged libellous publication, and that the proposed answer was a general denial and the truth of the facts stated in the publication. Held, insufficient to show the necessity for an examination of the plaintiff before trial; that the affidavit should show that the facts on which the answer is to be made are not within the defendant’s knowledge or otherwise readily obtainable by the defendant.
    Appeal from an order denying motion to vacate an order for the examination of plaintiff before trial
    
      Benno Loewy, for appl’t; Townsend, Dyett & Einstein, for resp’t.
   Daniels, J.

The action has been brought for the publication of an alleged libel in the New York Times, and the order was made for the examination of the plaintiff upon the statement that his testimony is material and necessary for the defendant in the defense of the action, and to enable him to prepare his answer. The facts concerning which it is stated to be necessary to examine the plaintiff are those which are set forth in the alleged libellous publication, and the answer intended to be made is stated to be that of a general denial, and that the facts set forth in the alleged publication are true.

But neither of these statements, nor all of them taken together, indicate the existence of any necessity for examining the plaintiff as a witness in the action before trial.

It has not been set forth that the facts upon which the answer is designed to be made are not at present within the knowledge or otherwise readily attainable by the defendant. The presumption, on the contrary, is that they must be within his knowledge, or had been obtained by him or others in the employment of the association before the time when this publication was made. From the statement made in his own affidavit and that of the attorney added to it, they can be accepted as entirely truthful and reliable, and still no probable necessity for the examination of the plaintiff in this manner has been disclosed.

The defendant certainly has the ability to deny the allegations in the plaintiff’s complaint without such an examination, and so, if the facts have come to his information justifying the publication, he may also allege the truth of the publication without in any manner being dependent upon evidence to be derived from the plaintiff. If this cannot be done, the least that can be expected is that the affidavits should disclose such a state of facts. There can be no difficulty in an application of this description for the party in whose behalf it may be made to state why it becomes necessary to examine the opposite party; and if the applicant has not already the information to be acquired, that readily admits of a distinct statement to that effect. It was equally so as to the necessity of acquiring further information for the purposes of the proposed pleadings, or to prepare the case for trial.

And the additional statement may also readily be made, where the facts will justify it, showing the party’s dependence upon evidence to be procured in this manner for the attainment of one or the other of these objects. As much as that is required by the authorities applicable to applications of this character. It is true that in the case of Herbage v. City of Utica, 109 N. Y., 81; 14 N. Y. State Rep., 845, the broadest possible discretion has been stated to exist for the making of this class of orders.

But this decision does not appear to be in harmony with what was decided in the same court in Jenkins v. Putnam, 106 N. Y., 272 ; 8 N. Y. State Rep., 710, where it was stated in the opinion followed by the court that “ The affidavit is required to disclose the nature of the action, and to set forth that the testimony of the party is material and necessary, and the judge must be able to see from the facts stated that the testimony of the party is material and necessary. If from the nature of the action and the other facts disclosed, he can see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged, nevertheless, to make the order. Here there is no allegation in the affidavit showing that the facts were not perfectly known to the defendant, or that it was important for him to have the testimony of the plaintiff before the trial, or that he had any reason to apprehend that he could not have his examination at the trial.”

The construction in this manner to be placed upon the provisions of the Code is in strict harmony with the decisions which have generally been made by this court upon the same subject, and seem to meet the necessity of the case rather than the wide and unlimited range of discretion mentioned in the later authority.

In Strakosch v. Press Publishing Co., 17 N. Y. Civ. Pro., 209 ; 25 N. Y. State Rep., 189, an application supported by affidavits substantially the same as those used in this action was held not to be sufficiently sustained for the support of an order for the examination of the plaintiff. And Balcom v. Adams, 15 N. Y. Civ. Pro., 198; 18 N. Y. State Rep., 13, supports this construction of the law, and so does Kirkland v. Moss, 11 Abb. N. C., 421; Weston v. Reich, 48 Hun, 320; 15 N. Y. State Rep., 823, and Williams v. Folsom, 52 Hun, 68; 22 N. Y. State Rep., 507. And Dudley v. Press Publishing Co., 25 N. Y. State Rep., 320, in no manner extends these rulings, for there it was shown to have become necessary by the examination of the plaintiff to identify the letter which was published with the one written by him.

Under the rule which has been settled and followed, although not uniformly, yet by most of the authorities, the order which has been made in this case cannot be sustained, but it should be reversed, with the usual costs and disbursements.

Van Brunt, P. J., and Brady, J., concur.  