Treadwell v. Greene
Appellate Division of the Supreme Court of the State of New York
Appeal from Special Term, New York County. Action by George A. Treadwell against William C. Greene. From an order granting a motion to vacate an ex parte order directing the examination of James Shirley as a witness on behalf of defendant before trial, defendant appeals. Reversed. See 84 N. Y. Supp. 354.
1Opinion of the CourtHatch, J.
The moving affidavit in this case complies with every rule required by section 872 of the Code of Civil Procedure to authorize the examination of a witness before trial. The learned court below vacated the order for the examination of the witness upon the ground that the affidavit was made by the attorney instead of by the party, and that the weight of authority required the affidavit to be .made by the party whenever practicable. This undoubtedly is the *558general rule to be observed. It is not without its exceptions, however. The Code provision does not require, as an absolute rule, that the…
2Cases cited4 opinions
- Wolff v. KaufmanAppellate Division of the Supreme Court of the State of New York · 1901
- Simmons v. HazardNew York Supreme Court · 1890
- Orne v. GreeneAppellate Division of the Supreme Court of the State of New York · 1902
- James v. SignellAppellate Division of the Supreme Court of the State of New York · 1901