George A. Higgins, Appellant, v. New York Dock Company, Respondent

George A. Higgins, Appellant, v. New York Dock Company, Respondent. Second Department, April 22, 1910. Discovery — examination of plaintiff before trial — damages—when moving affidavit insufficient. In an action to enjoin a nuisance the defendant is not entitled to examine the plaintiff before trial to discover the items and details of the damages alleged. An examination of a party before trial will not be granted on the mere allegation that the deposition is material and necessary if no facts be shown which indicate that there is reason for the statement. Appeal by the plaintiff, George A. Higgins, 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 Kings on the 30th day of Hovembér, 1909, denying the plaintiff’s motion to vacate an order for his examination before trial. Joseph F. Conran, for the appellant. Charles F. Hotchkiss [ W. MacFarland Lord with liim on the brief], for the respondent. • [MAJORITY — Jenks, J.:] Jenks, J.: This action is to enjoin the defendant from working a private railroad on certain highways in the borough of Brooklyn, on the ground that it is a nuisance and that it interferes peculiarly With the plaintiff’s business. The moving'affidavits are two — of the treasurer of the defendant and of its attorney. The treasurer deposes that defendant desires to examine the plaintiff “ as to his business, and as to the damage which he alleges he lias suffered by reason of the acts óf the defendant and as to the manner in which he will be irreparably injured if he is not granted the relief which he asks for in the amended complaint.” The attorney deposes only that he verily believes and. has advised the defendant “ that in order to properly defend this action the deposition of the plaintiff before trial is material and necessary.”- The plaintiff sets forth in his complaint what, his business had been, what business lie proposes to carry on, what the nature of the damages to his busiñess was and what the threatened damage to his business is, but he does not seek to recover compensation.. If the purpose of the examination is to procure the items and details- of such damages, the examination should have been refused* as it is not incumbent on the defendant to' establish the items of the plaintiff’s damage. (Hartog & Beinhauer Candy Co. v. Richmond Cedar Works, 124 App. Div. 627; Sperry & Hutchinson Co. v. O' Neill-Adams Co., 135 id. 285.) - The .allegation that the deposition before trial is material and necessary affords" no ground for the relief in the absence of any facts that indicate that there is reason' for that statement. (Naab v. Stewart, 32 App. Div. 478 ; Nichols N. Y. Pr. 1797 et seq.) The . order must be reversed, with ten dollars costs. and disbursements, 'and the motion granted, with costs. Hirschberg, P. J., Burr, Rich and Oarr, JJ., concurred. Order reversed, with ten dollars-costs and disbursements, and motion- granted, with costs. 1