Elmore v. Hyde
New York Court of Common Pleas
Application by plaintiff for examination of a defendant before trial. This action was- brought by Lyman Elmore- and another against Henry B. Hyde and others. After the action was at issue application was made by the plaintiffs, for the examination of the defendant Henry B. Hyde as a witness on their behalf before trial, under section 391 of the Code.
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Application by plaintiff for examination of a defendant before trial. This action was- brought by Lyman Elmore- and another against Henry B. Hyde and others. After the action was at issue application was made by the plaintiffs, for the examination of the defendant Henry B. Hyde as a witness on their behalf before trial, under section 391 of the Code. The application was founded merely upon the complaint, verified in the usual form, and the affidavit of the plaintiff’s attorney, that neither he nor the plaintiffs, to his best knowledge, information and belief, possessed any actual knowledge of…
1Opinion of the CourtRobinson, J.
[After stating the facts.]—I had occasion recently, in the case of Schepmoes v. Bousson, 1 Abb. N. C. 481, in what might be termed a suit at law, to examine, somewhat in detail, what I regard to be the peculiar province of the proceeding thus authorized, and to express the opinion that it was one assimilated to and a substitute for the former proceeding by bill of discovery in aid of such an action or its defense, whereby the adverse party, if a necessary and material witness to the case of the party seeking his examination, might be so examined preliminarily to the trial, as well in respect…
2Cases cited13 opinions
- Ellis v. BrownNew York Supreme Court · 1849
- Gelston v. HoytNew York Court of Chancery · 1815
- Schepmoes v. BoussonNew York Court of Common Pleas · 1877
- Lansing v. PineNew York Court of Chancery · 1834
- Glenney v. StedwellNew York Court of Appeals · 1876
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3Cited by4 opinions
- People's Bank v. HelmsSupreme Court of South Carolina · 1927
- Adams v. CavanaughNew York Supreme Court · 1885
- Adriance v. SandersThe Superior Court of New York City · 1882
- Fluchtwanger v. DessarNew York Supreme Court · 1889