Trotter v. Brevoort

G-aynob, J.:

The affidavit on which the order for the plaintiff’s examination was obtained shows the facts required by subdivisions 1 to 4 inclusive of section 872 of the Code of Civil Procedure, and in addition that he is bedridden and will not be able to attend the trial. This latter is a necessary statutory ground for the examination of a witness before trial (sub. 5). But at the end of subdivision 5 is a provision that it “ does not apply to a case where the person to be examined is a party to the action.” The ground on which this motion is made is that the plaintiff cannot procure his own…