Opinion
November, 1907.
Robinson, Biddle Ward, for appellant.
Wentworth, Lowenstein Stern, for respondent.
The plaintiff alleges that, through the collapse on September 7, 1905, of the building No. 202 Grand street, of which he occupied the third floor, his goods were damaged. He ascribes his loss to the negligence of the defendant. The allegation in the complaint bearing upon the defendant's liability is as follows: "Upon information and belief, that, on or about the 7th day of September, 1905, the defendant was in possession and had control of the real estate and premises known as No. 202 Grand street, borough of Manhattan, city of New York, and received the rents and profits thereof." By his answer the defendant admits the collapse of the building and the receipt by him of certain rents and profits from the premises; but he denies the other allegations of the complaint.
The plaintiff procured an order for the examination of the defendant before trial. This appeal follows a refusal to vacate or modify that order.
The plaintiff's affidavit on which the order was based satisfied all the requirements of the Code (§ 872) and the rule (Rule 82, General Rules of Practice) regulating the taking of depositions. There is no suggestion of bad faith or of ulterior purpose. Therefore, under the salutary rule which now prevails, the plaintiff acquired the right to an examination. Watt v. Feltman, 111 A.D. 314; Goldmark v. United States Electro-Galvanizing Co., 111 id. 526; McKeand v. Locke, 115 id. 174; Turck v. Chisholm, 53 Misc. 110; Hill v. McKane, 115 A.D. 537; Shonts v. Thomas, 116 id. 854; Istok v. Senderling, 118 id. 162; Donaldson v. Brooklyn Heights R.R. Co., 119 id. 513.
The order, however, is too broad. The Code requires that the affidavit upon which the order rests shall contain the assertion "that the testimony * * * of such person is material and necessary for the party making such application," and this requirement is amplified by the rule which compels a justification of that assertion by a specification of "the facts and circumstances which show * * * that the examination of the person is material and necessary."
In his affidavit the plaintiff makes no claim that the testimony sought to be adduced is either material or necessary except as to the single issue — the defendant's "possession and control of the said premises at and prior to September 7, 1905;" and his specification of the facts and circumstances called for by the rule is likewise limited to that one issue.
Notwithstanding that the plaintiff did not assert that there was occasion to take the defendant's deposition respecting any other issue, he procured an order which directed that the defendant "be examined on behalf of the plaintiff upon the issue in this action."
Papers which show the materiality and necessity of an examination of an adverse party concerning but one of several issues will not justify an order for a general examination.
The Code permits the examination of an adverse party to the extent that the applicant proves such examination to be material and necessary and not beyond.
The order appealed from should, therefore, be modified so as to confine the examination to the facts with respect to the defendant's possession and control of the premises No. 202 Grand street at and prior to September 7, 1905.
Order as so modified affirmed, with disbursements but without costs.
GILDERSLEEVE and ERLANGER, JJ., concur.
Order modified and as so modified affirmed, without costs.