Martin v. Hicks.

and substantially so stated by the managing clerk in the office of the appellant's attorneys, that the appellant's motion was denied at special term on the ground that the court "had no power to vacate an order made by another judge, the making of which rested in the discretion of such judge." It does not, however, appear in the order appealed from, that the decision was placed upon such grounds; but if that were the case, we should be at liberty to look into the merits of the motion on this appeal without sending it back for consideration on its merits by the court below.

The perpetuation of the testimony of any witness within this State by any party to a suit is a matter of right in cases when the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith. In these cases it does appear by the papers now before the court, that the person whose testimony is sought to be perpetuated is the only living witness who can be called as such, of the execution of an instrunent which, if genuine, is of the gravest importance to the party averring its execution. The paper presented to the judge granting the order contained nothing tending to show bad faith on the part of the applicant, and, therefore, nothing upon which a denial of the order would have been proper. The respondent had the right, therefore, to guard herself against the contingency of the death or other disability named in the statute of that witness. To deny her this must be upon the assumption by the court, that the instrument sought to be proven and used, is a forgery, and that would be trying in advance an issue which should only be tried by a court and jury. It is asserted, and the papers certainly tend to show, that one object in making the application to take the testimony of the witness in this form, was to avoid her personal production in court; but we must assume that that object

Martin e. Hicks.

1871, before referred, and to various interviews and transactions between this deponent and the said Marley, before, at and after the making and delivery of the said agreement, which are of great importance and essentiality to this deponent in each and both of the actions above entitled, and in regard to which this deponent is entirely debarred by law from testifying,* as she is advised and verily believes. That the said Ann Keefe is a servant and person in an humble condition of life, who is likely frequently to change her place of residence. That the facts about which the said Ann Keefe is to be examined can not be immediately investigated in a court, whereby and by reason of all the premises deponent is in great danger of losing her testimony unless the same be taken and perpetuated persuant to statute by order of this court or a justice

thereof.

Joseph Larocque, for the appellant.

John A. Wright, for the respondent.

DAVIS, P. J.-The order to perpetuate the testi mony of a witness was made upon an application by affidavit which complied with all the requirements of the statute. The motion to vacate the order was not made upon any alleged irregularity in granting it, but on the ground that it was improvidently granted, and on an affidavit and order made in one of the cases at circuit denying motion to postpone the trial of the action, and on the pleadings in the said actions respectively. It is asserted by the counsel for the appellant

cation rears à

cases I e II

court, that te

perpetuated a te n

called as such of the teen if genuine, is the aver averring is eentiva. Le judge granting he mer to show had faith in the ar therefore, nothing pon vies would have been proper. The right, therefore, to guard berse gency of the death or other ar statute of that witness. Tipy upon the assumption by the cour

sought to be proven and used, is ri

ing in advance an ace

a court and jury. 33
inly tend to show.
plication to take he estim
sform, was to avoid her pers
ourt; but we must assukne time th

Tilton v. United States Life Ins. Co.

will be easily defeated by compelling a prompt and speedy trial of the issues.

We see no reason for interfering with the order of the court below, and it must be affirmed with $10 costs besides disbursements.

BRADY and DANIELS, JJ., concurred.
Ordered accordingly.

TILTON v. UNITED STATES LIFE INSURANCE COMPANY.

N. Y. Common Pleas; Chambers, 1876.

AFFIDAVIT FOR EXAMINATION BEFORE TRIAL.

An order for examination of an adverse party before trial can not be sustained on an affidavit in which material allegations are on infor

mation and belief.*

Motion to vacate an order.

John Tilton and others, stockholders in the corporation defendant, brought an action against the company and its officers, and obtained an order for examination of certain individual defendantst to enable him to frame his complaint.

The material allegations of the moving affidavits relating to the defendants whom it was sought to examine were expressed to be on information and belief, and

* See Slade v. Joseph, 5 Daly, 187; Cummings . Woolley, 16 Abb. Pr. 297, note; Brooklyn Daily Union v. Hayward, 11 Abb. Pr. N. S. 235; Thompson. Lumley, p. 255 of this vol.; and see p. 172 of this vol.

+ As to necessity of joining as defendants, the persons sought to be exainined, see Goodyear v. Phoenix Rubber Co., 48 Barb. 522; Carr v. Great Western Ins. Co., 3 Daly, 160.

Tilton v. United States Life Ins. Co.

the sources and nature of the information were not stated, nor were the grounds of belief.

Mr. Vanderpoel, moved to vacate the order.

W. J. Butler, opposed.

VAN BRUNT, J. [after stating the nature of the affidavits.]—The allegation of a fact upon information and behalf in a complaint, without stating any of the belief evidence upon which that belief is founded, is a perfectly good allegation, because it is the duty of the pleader to state the facts upon which he believes his cause of action is founded, and not any part of the evidence tending to establish those facts. The office of an affidavit is very different. An affidavit must not only state facts, but also the evidence tending to establish those facts. It is the weight of the evidence disclosed in an affidavit that gives it its influence. The court must be satisfied from the evidence which the affidavit contains that the facts exist entitling the party to the remedy sought. It is in most cases, there being a few exceptions, a matter entirely immaterial what the affiant believes from the information which he has received. The question necessarily is, is the court satisfied that the information conveyed, considering its character and the source from which it comes, justifies the affiant in the belief to which he has sworn?

That this is the true function of an affidavit is distinctly recognized by the Code, because it requires in every instance that a party applying for a provisional remedy show that he is entitled to it by evidence furnished by affidavits, and that, too, in one instance where the complaints must be before the court at the same time. An injunction cannot be granted unless it shall appear by the complaint that the plaintiff is entitled to such relief; but that sufficient grounds.