#### William Moses, plaintiff, *vs.*George W. Banker, defendant.

1. To authorize the granting of an order under section 401 of the Code, the judge who grants it must he satisfied hy competent and sufficient proof, at least: 1. That the party applying for it intends to make or oppose a motion; and 2. That it is necessary for him, in making or opposing such motion, to have the deposition of some person who refuses to make a voluntary affidavit.

2. It is usual to take the affidavit of the attorney applying for the order, as competent and sufficient proof of these matters. But if on the face of such affidavit it appears either that there is no intention of making or opposing a motion; or that the deposition desired is not necessary; or that the court has no power to order the party, whose deposition is desired, to make it, the court should refuse the order. .

3. Thus, if such affidavit shows, that the motion intended is merely one to make an answer more definite and certain, no deposition of a witness is necessary, as such motion is to he determined on the pleadings alone; or if it appears hy such affidavit that the person whose deposition is required is incompetent, the court has no authority, under such section (401,) to author- . ize his examination; or if, although the attorney, in such affidavit, swears, generally, that he intends to make a motion, and that he desires the deposition of a particular person for such motion, it appears, from other facts set forth in his affidavit, that his real object is, under the pretense of making a motion, to obtain an examination to which he is otherwise not entitled; in all these 'cases the court would be bound to refuse the order. *Per*Joses, J.

4. The motions to vacate orders made under section 401 of the Code are not to be encouraged, qnd should be granted only in cases where it clearly appears either that the order is unauthorized, or that a legitimate use of the process of the court is. not the object for which the order was obtained.

*1325. The order should be vacated where it appears by affidavits or other proper evidence, that it was not designed for the purpose of obtaining depositions to be used on a motion, but for some other purpose, such as enabling the applicant to ascertain either what course of opposing evidence it would be necessary for him to prepare to meet, on the trial; or whether it would be safe for Mm, to call as witnesses on the trial the persons whose depositions are proposed to be taken.

(Before Jones, J. at special term,

February —, 1867.)

This was an application to set aside an order obtained ex parte compelling certain persons who had refused to give their affidavits to be examined before a referee under ’ section 401 of the Code of Procedure.

The complaint alleged that the defendants were co-partners ; that the plaintiff sold and delivered to them, as such copartners, certain goods of a certain value ($1127.51,) and that the defendants had not paid such sum; and demanded judgment for that sum. The answer denied the sale and delivery; also that the plaintiff, at the time of the alleged sale and delivery was the owner of such goods, and averred that at that time the goods were the property of one Wm. H. Van Bokkelin, for whose benefit the answer alleged the suit was prosecuted.

The issue was joined in August, 1866. The cause was reached for trial in January, 1867, (18th,) and neither party being ready, it was set down for a subsequent day in that month, (24th.) On that day it was again called for trial, and neither being yet ready it went off for the term. On the last day of January, 1867, the plaintiff procured an *ex parte*order appointing a referee to take the depositions of various persons, and among them one of the defendants, to be used on a motion the nature of which was not specified. This order was made upon án affidavit sworn to by the plaintiff’s attorney, which was merely stated that the action was brought to recover for goods sold and delivered by the plaintiff to the defend*133ánts; that the deponent intended to make a motion to strike out the answer as sham, or to compel the defendants to make the answer more specific and definite ; that he deemed it necessary to have the affidavits of certain persons therein named, to use on such motion, and that he had applied to them to make affidavits for the purpose, but they had refused.

The defendants’ attorney now moved to set aside this ex parte order of January 31st, upon the pleadings in the action, and his affidavit, (by which the issues joined and the various proceedings in the action, as above set forth were for the first timé presented to the notice of the court. In opposition to such motion, the plaintiff’s attorney read an affidavit of his own, setting forth that since the cause was reached on the calendar, facts had come to his knowledge which led him to believe that the answer was sham, and was put in with intent to delay and ultimately defeat the collection of, the plaintiff’s claim.

Jones, J.

Section 401 of the Code provides that *“*when any party intends to make or 'oppose a motion, in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may by order appoint a referee to take the affidavit or deposition of such person.” The order of January 31st was obtained under this section. To authorize the granting of an order under this section the judge who grants it must be satisfied by competent and sufficient proof, first: That the party applying for it intends to make or oppose a motion; and second: That it is necessary for him in making or opposing such motion, to have the deposition of some person who refuses to make a voluntary affidavit.

*134It is usual to take the affidavit of the attorney applying for the order, as competent and sufficient proof of these matters. But if on the face of such affidavit it appears either that there is no intention of making or opposing a motion; or that the deposition desired is not necessary ; or that the court has no power to order the party, whose deposition is desired, to make it, then, without doubt, the court will be bound to refuse the order. Thus if such affidavit shows that the motion intended is merely to make an answer more definite and certain, as such motion is to be determined on the pleadings alone, on deposition of a witness can possibly be necessary; or if it appears by such affidavit, that the person whose deposition is required is incompetent, the court will have on authority, under section 401, to authorize his examination ; or if, although the attorney, in such affidavit, swears generally that he intends to make a motion, and that he desires the deposition of a particular person for .such motion, it yet appears from other facts set forth in his affidavit; that his real object is, under the guise of a motion, to obtain an examination which he otherwise could not get; in all these cases, and perhaps others, which do not now occur to me, the court would be bound to refuse the order.

It may be urged, that the order does not affect any right of the opposite party, and that therefore after it is made, the opposite party has no right to move to vacate it on the ground that it appears on the face of the papers on which it is founded that it should not have been granted; and much less on'the ground that on facts which do not appear on the face of the papers, it should not have been granted.

I think the order does affect aright of the opposite party. He has a right to attend on the éxamination, with his counsel, and to cross-examine, as has been recently held by the, general term of this court. Such attendance sub*135jeets him to trouble and expense, and this gives him a sufficient interest to entitle him to move to vacate the order. Such motions, however, are not to be encouraged, and should be granted only in cases where it clearly appears either that the order is unauthorized, or that a legitimate use of the process of the court is not the object for which the order was obtained.

In this case it seems to me, speaking from the papers, that this order is not intended for the legitimate purpose of obtaining depositions to be used on a motion, but for some other purpose; such, perhaps, as enabling the plaintiff to ascertain what line of proof it will be necessary for him to prepare to meet, on the trial; or perhaps to ascertain whether it would be safe for him to call those persons as witnesses, on the trial.

The issues raised by the answer are, whether the plaintiff sold and delivered the goods in question to the defendants ; whether he owned the goods or not; and whether the action is brought for his benefit. Surely the plaintiff, when this action was commenced, must have known whether he owned the goods or not, and whether the action was brought for his benefit or not; and must have been possessed of the requisite proof to sustain these facts. When the answer was served, if in these particulars it was false, he must have known it. It could not have been necessary for him to wait five months to find out whether it was false in those particulars nor to ascertain whether he had proof enough to establish his own ownership and right to commence the action for his own benefit. Although, however, he might be able to show the falsity of the answer in those respects, he could not succeed in a motion to strike out the answer as false, unless he could show that the issue raised as to whether the goods were sold and delivered to the defendant, was also false.

*136If this sale and delivery had been conducted in the manner in which sales and deliveries of goods ordinarily are, and no serious question had been involved, the plaintiff, immediately on the coming in of the answer, would have known its falsity, and could have taken measures immediately to procure a judgment on the ground of its falsity, and need not have waited five months, allowing two chances for trying his case to pass by unheeded, and then for the first time, only six days after he had neglected one opportunity to try his case, endeavoring to obtain a judgment on motion.

There is a class of cases in which, upon all the facts and the law applicable thereto, there is grave doubt as to whom a sale is made. In that class of cases, a motion to strike out an answer as false is manifestly improper, and it cannot be conceived that counsel could seriously entertain an idea of making such a motion. The facts that appear before me indicate that this action falls within this class of cases. On no other supposition can the plaintiff’s delay in making the motion, and his neglect to take advantage of two opportunities to try his case be accounted for.

But there is another ground which seems to me to be conculsive against the plaintiff. The object of a motion to strike out an answer as false is to obtain a speedy judgment without being subjected to the delay of waiting for the same to be reached for trial. It is incredible that that motive should actuate a plaintiff, who had waited until his cause had been twice called for trial before making a motion which belongs to a class of motions, success in which is always very difficult to attain ; and especially is it incredible when, as in this case, the action could have been tried on its merits as soon, if not sooner, than the motion could have been determined.

*137For these reasons, I am clearly of opinion that the order in question was not obtained for the legitimate purpose' of procuring testimony to be used on a motion, and that consequently the order should be vacated.

Motion granted, without costs.