App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1897.

the owner upon which this order could operate as a pro tanto assignment, the provisions of this act would not have affected the right of the plaintiff to receive what was then due to him; but when this statute was passed nothing was due to either the contractor or the plaintiff as an assignee of the contractor. His right to receive anything depended upon the completion of the building by the contractor, and as there was nothing then due to either the contractor or the plaintiff, and as it does not appear that at that time there had been any money either earned or payable to the contractor upon which this order could operate, I think the provisions of the statute affected it; and as between liens filed under the provisions of the act, and such an order for the payment of a sum of money to grow due for work to be thereafter performed, that to entitle the order to priority over the liens, such order must be filed in accordance with the provisions of the act.

I think, therefore, that, upon the evidence as it stood upon the trial, the direction of a verdict in favor of the plaintiff was error, and that the exceptions should be sustained and a new trial ordered, with costs to the appellant to abide the event.

Exceptions overruled, and judgment ordered for plaintiff, with

costs.

DENIS LEARY, Appellant, v. JACOB RICE, Defendant; NICHOLAS STOCK and JOHN N. CORDTS, Respondents.

Examination of a party before trial not granted to enable a party to find out to what the opponent's witnesses will testify, and to procure other evidence.

In order to entitle a party in an action to an examination of his adversary before trial, the affidavit on which the application is made must show that the testimony of the person sought to be examined is material and necessary as evidence for use upon the trial by the party making the application, and that must appear from facts and circumstances alleged, and not from a mere conclusion of the affiant.

The motion will not be granted merely to enable a party to find out what his opponent's witnesses will swear to, or to enable the party to procure other evidence to be produced upon the trial.

An allegation that the testimony is necessary for the reasons that the agreement alleged in the complaint, upon which the action is founded, was made between the plaintiff and one of the defendants, who did not appear in the

FIRST DEPARTMENT, MARCH TERM, 1897.

[Vol. 15.

action; that these defendants making the application have no knowledge of the time and place at which the agreement was made, or the amount that was loaned and advanced to the plaintiff by such non-appearing defendant; as to what persons, if any, were present at the time of the making of the said agreement, or as to the terms and conditions thereof; and, further, that the tender alleged in the complaint, having been made by the plaintiff upon the nonappearing defendant, these defendants have no knowledge as to the time and place of the tender and demand, or as to who were present at the time of such tender; that the defendants have no knowledge of these facts, and that a discovery of the same is necessary to enable the defendants to prepare for the trial of the action, and for the defense thereof upon the trial and otherwise, as may be necessary is insufficient.

APPEAL by the plaintiff, Denis Leary, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of December, 1896, denying his motion to vacate an order for the examination of the plaintiff before trial.

The action was brought to recover the possession or value of a certain railroad, bond deposited with the defendant Rice, as collateral security for a sum loaned by said defendant to the plaintiff, under an alleged agreement that when the money was repaid the bond would be returned. The defendants, other than Rice, it was alleged, had wrongfully taken this bond from Rice and had converted it.

Edward Hassett, for the appellant.

G. D. B. Hasbrouck, for the respondents.

INGRAHAM, J.:

By rule 82 of the General Rules of Practice it is provided that to obtain an order for the examination of a party before trial the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of section 872 of the Code, that the examination of the person is material and necessary. The facts must be stated in the affidavit, so that the court can judge as to whether or not the examination of the party proposed to be examined is material and necessary for the party making the application. An examination of an adverse party cannot be said to be material unless the facts are stated from which it appears that the testimony of the party proposed to be examined is necessary to be used upon

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1897.

the trial, either to prove or disprove the plaintiff's cause of action, or prove or disprove a defense alleged by the defendant. The deposition of a witness cannot be material for the prosecution or defense of an action if its object is to enable a party to find out what his opponent's witnesses will swear to, to enable him to procure other evidence to be produced upon the trial, or to enable him in any way to prepare for trial. The testimony of a person is said to be material and necessary for a party in a judicial proceeding where it appears that such person can testify to facts material to the issue; and the examination of such person can be said to be material and necessary when, from the facts stated, it appears that the testimony of the witness is necessary in the prosecution or defense of the action in which it is proposed to take the testimony. It has been uniformly held, since these provisions for the examination of an adverse party have been in force, that to justify such an examination it must appear, by a fair inference from the facts stated, that the object of the examination is to procure testimony to be used upon the trial, and for no other purpose. Courts have always been careful to limit the examination of a party to this one purpose, where the examination is sought after issue has been joined. An examination of the affidavit upon which this order was granted clearly shows that it was not the intent of these defendants to examine the plaintiff for the purpose of using his testimony upon the trial, but that their intent was to ascertain what he would swear to upon the trial to support his cause of action so as to enable the defendants to prepare to meet and answer his testimony. However useful that would be to enable the defendants to defeat the plaintiff on the trial of the action, it does not show that the examination of the plaintiff before the trial is material and necessary for the defendants in the defense of the action. The defendants are careful to avoid saying in their affidavit that the testimony of the plaintiff and the testimony of the other defendant is at all necessary to be used upon the trial of the action. They do say that the testimony is material and necessary to enable these deponents to prepare for trial, and also for the defense of the said action on the trial thereof, for the reasons that the agreement alleged in the complaint upon which the action is founded was made between the plaintiff and the defendant Rice, who did not appear in the action; that the defendants have no knowledge of the time

FIRST DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. and place at which the agreement was made, or the amount that was loaned and advanced to the plaintiff by Rice; as to what persons, if any, were present at the time of the making of the said agreement, or as to the terms and conditions thereof; and, further, that the tender alleged in the complaint, having been made by the plaintiff upon the defendant Rice, these defendants have no knowledge as to the time and place of the tender and demand, or as to who were present at the time of such tender; that the defendants have no knowledge of these facts, and that a discovery of the same is necessary to enable the defendants to prepare for the trial of the action, and for the defense thereof upon the trial and otherwise as may be necessary. There is not a fact here stated that would justify the conclusion that the object of the application was to procure testimony to be used upon the trial. These defendants are not called upon to prove the agreement alleged in the complaint between the plaintiff and Rice; the amount of money claimed to have been loaned and advanced to the plaintiff by Rice, or to Rice by the plaintiff; or when such money was paid, or the persons who were present at the time such agreement was made; nor are they required to prove the tender of the money and the demand for the securities. It is not alleged, nor is there any fact alleged, that tends to show that either the plaintiff or the defendant Rice would testify to any fact which would aid the defendants to disprove the cause of action alleged in the complaint, nor to prove any affirmative defense alleged in the answer. On the contrary, the affidavit states that the defendant Rice is hostile to these other defendants, and that that is one of the reasons why it is alleged to be quite important that these defendants should know what he will swear to, so as to enable them to prepare to meet his testimony. But, as before stated, this does not show, or tend to show, that the "testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action." What a party must show to entitle him to an examination of his adversary before trial is, that the testimony of such person to be examined is material and necessary as evidence for use upon the trial by the party making the application, and that must appear from facts and circumstances alleged, and not from a mere conclusion of the affiant. For this reason, we think the order appealed from should be reversed, with

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FIRST DEPARTMENT, MARCH TERM, 1897.

ten dollars costs and disbursements, and the order for the examination vacated, with ten dollars costs.

VAN BRUNT, P. J., and PATTERSON, J., concurred; O'BRIEN and WILLIAMS, JJ., dissented.

O'BRIEN and WILLIAMS, JJ.:

We think the affidavit sufficient.

Order reversed, with ten dollars costs and disbursements, and order vacated, with ten dollars costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL J. HOWARD, Relator, v. THEODORE ROOSEVELT and Others, Police Commissioners, Composing the Board of Police of the Police Department of the City of New York, Respondents.

Discharge of a patrolman — found sitting down on a box, with a pail of beer near him.

A member of the police force of New York city was found by an inspector, during his tour of patrol duty, sitting on a box on a dock, which was within his beat, with a pail of beer beside him, in company with another patrolman, who was eating oysters.

The policeman testified that he sat down because he felt the effects of a wound received in the discharge of his duty. There was no evidence that he sat there for any length of time or drank the beer.

Held, that such facts did not justify a finding of neglect of duty or his removal from the force.

CERTIORARI issued out of the Supreme Court and attested on the 5th day of November, 1896, directed to Theodore Roosevelt and others, police commissioners, composing the board of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings relating to the dismissal of the relator from the police force of the city of New York.

George H. Bruce, for the relator.

Terence Farley and Francis M. Scott, for the respondents.