#### Alice K. Cherbuliez, as Committee of the Person and Property of Adele Cherbuliez, an Incompetent Person, Appellant, *v.*Robebt E. Parsons, Respondent.

Second Department,

January 24, 1908.

Deposition — examination before trial — statute and. rule construed — when testimony sought material — sufficiency of moving papers.

The requirement of section 872 of the Code of -Civil Procedure that on an. application to examine a party before trial his “testimony” must be shown to be material and necessary means the same thing as the requirement of rule 82 of the General Rules of Practice that his “examination” must be shown to be material and- necessary.

*815As a defendant who is alleged to have ridden over and injured'plaintiff’s ward who subsequently became mentally incompetent, was present and saw what happened, his evidence may be deemed to be material and may be taken before ' trial if necessary.

Such examination should not be denied on the -theory that the examination of the adverse party is not necessary because the facts can be testified to by other witnesses, nor need the moving affidavit state that the party has no other witness.

The moving papers on such an application need not. state specific facts as to which. an examination is desired, for a party has the right to examine his adversary as to all the facts.

Such examination should not be denied upon the ground that it is an attempt to ascertain whether the plaintiff has a case.

The right to an examination of a party before trial should not be harassed and thwarted by the mass of technical and minute decisions on the subject.

Appeal by the plaintiff, Alice K. Cherbuliez, as committee, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15th day of October, 1907, vacating two prior orders for the examination of.the defendant before trial.

*Herbert Barry [Henry B.*Short, Jr., with him on the brief], for the appellant.

*Stephen O. Lockwood,*for the respondent.

Gaynor, J.:

■ The complaint alleges that the defendant negligently drove his horse against and upon the ward of the plaintiff, a young lady, in the street. The said ward has been adjudged mentally incompetent since the occurrence, and the action is brought by her committee. The answer is a general denial, except that it admits that the defendant was riding his horse at the time and place alleged in the complaint. The affidavit upon Which the order for the examination of the defendant was obtained contains all the requirements prescribed by section 872 of the Code of Civil Procedure and Rule 82 of the General Bules of Practice. Subdivision 4 of the said section requires the affidavit to set forth “that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense' of such action ”, and it does so ; and *816the said rule requires the affidavit to “ specify the facts and circumstances ” which show that the “ examination of the person is material and necessary ”, The change of terminology from “ testimony ” in . the said section to “examination” in the said rulé does not change the meaning and may have been inadvertent.

That the defendant was present and saw what happened certainly makes his evidence material, and inasmueh as what occurred has to he proved, it is proper to take it before trial if it he necessary. The interpretation of the learned Justice belowisthatthé testimony of an adverse party is not necessary if the facts can be testified to ■ by some one else, and he points out that the affidavit is therefore deficient for not stating that the plaintiff has no other, witness. This is erroneous ; -the necessity of the evidence does not depend on whether there be other witnesses on the same head *(McKeand*v. Locke, 115 App. Div. 174). It may well he that there are cases in which the testimony sought, though material, would not be necessary, for the reason (for instance) that it is made to appear that the issue upon which it is material is conceded to the party seeking the testimony, or that the fact it is to prove is provable by' incontrovertible documentary evidence, or is of a character which requires only formal proof which the party already lias, .and is obviously not tó be disputed after that is supplied, or the like. In .such cases the Opposite party does not need to he inconvenienced by an examination. - The learned Justice also regards the affidavit as deficient for not mentioning, any “specific fact in connection with the accident” as to which the examination is wanted. It is not necessary that an examination should be restricted to a specific fact; on the contrary, a party has the right to examine his adversary on all of "the facts. Here the intention is to examine the defendants as .to all of the facts — whether his horse ran into the ward of the plain tiff,, whether it stepped on her, and every detail of the occurrence. That the ward has lost her reason.from the injuries received, as the affidavit states, and cannot testify, is an additional reason, if any were necessary, why the defendant should he examined. The learned Justice also says that defendants must be protected from examinations which áre an attempt to ascertain whether the plaintiff has any case. There is nothing in this. It is easy to magnify objections. What is the examination of all witnesses by *817the plaintiff, whether before or at the trial, but an attempt to ascertain whether the plaintiff has a case ?

We have recently dealt with this subject, and it suffices that we call attention to what we then said. The provisions for tlie examination of parties before trial are no longer to be curtailed and frustrated by technicalities and exaggerated reasons. They are valuable aids in the ascertainment of the truth. They are not complex but simple, and those who substantially comply with them are ho longer to be harassed and thwarted by the mass of technical and minute decisions which have accumulated in respect of them *(Shonts*v. Thomas, 116 App. Div. 854; *Donaldson*v. *Brooklyn Heights R. R. Co.,*119 id. 513; *Goldmark*v. *U. S. Electro-Galvanizing Co.,*111 id. 526; *Mckeand*v. *Locke,*115 id. 174).

The order should be reversed and the motion to vacate denied.

Woodward, Jenks, Hooker and Hiller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.