Leary v. O'Brien

To entitle the plaintiff to prevail on this motion, it is essential that the mind of the court should he satisfied, from the statements made in the plaintiff’s affidavit, upon which he bases his application, that the testimony of the defendant is material and necessary for the plaintiff or the prosecution of the action. And the affidavit should specify the facts and circumstances which show that the examination of the defendant is material and necessary. The application is addressed to the discretion of the court (Jenkins v. Putnam, 106 N. Y. 272), and it is the duty of the party seeking the…