Opinion
April, 1895.
C.H. Hodges, for motion.
C.M. Beattie, opposed.
The affidavit upon which the order for the examination of the defendant to aid in framing the complaint was granted is made by the plaintiff's attorney, whose essential allegations, therein contained, are made on information and belief, derived from parties therein named, without producing the affidavits of such persons or excusing their non-production. It is a general rule of practice that an affidavit upon which an order for the examination of a party before trial is made, which is entirely upon information and belief, and which states the source of such information, but does not assign any reason why an affidavit is not made by the party from whom the information is obtained, is insufficient, and the order should be vacated. See Cross v. Ins. Co., 17 Civ. Proc. Rep. 199; Koehler v. Sewards, 29 N.Y. St. Repr. 364; Matter of Bronson, 78 Hun, 351. It, therefore, seems to me that the order must be vacated. However, as it is discretionary with the court to make an order for defendant's examination after having vacated a former one (see Simpson v. Budd, 9 Reporter 489), the plaintiff may renew the application on proper affidavits, upon payment to defendant's attorney of ten dollars costs of motion.
Motion to vacate order granted, with leave to renew on payment of ten dollars costs.