Reynolds v. Callan
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Peter J. Gallan, from an order, made by the Albany county judge on the 14th day of July, 1909, and entered in the office of the clerk of the county of Albany, denying a motion to vacate an order for the examination of the defendant Wallerstein before trial. The action was brought to recover the value of services rendered and material furnished by the plaintiff, as an architect.
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Appeal by the defendant, Peter J. Gallan, from an order, made by the Albany county judge on the 14th day of July, 1909, and entered in the office of the clerk of the county of Albany, denying a motion to vacate an order for the examination of the defendant Wallerstein before trial. The action was brought to recover the value of services rendered and material furnished by the plaintiff, as an architect. The complaint alleges that “ the plaintiff rendered services to and for the defendants at the defendants’ request and on their promise to pay for the same, as an architect, and on like request…
1Opinion of the Court
Sewell, J.:
Before a party can be permitted to examine his adversary before trial he must present an affidavit setting forth, among other things : “ That the testimony of such person is material and necessary for the party making such application.” (Code Civ. Proc. § 872.) This provision of the Code is supplemented by rule 82 of the General Rules of Practice, which requires that the affidavit shall specify the facts and circumstances which show that the examination of the person is material and necessary. It is clear that the affidavit upon which the order for examination in this case was made…
2Cases cited1 opinion
- Oakes v. Star Co.Appellate Division of the Supreme Court of the State of New York · 1907
3Cited by1 opinion
- Schnabel v. Hanover National BankAppellate Terms of the Supreme Court of New York · 1912