Smith v. Koonz , 189 A.D. 913 ( 1919 )

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The circumstances disclosed in the affidavit are such as to justify the court that made the order for the examination of defendant in acting upon an affidavit made by plaintiff’s attorney. The case falls within the principle of Oshinsky v. Gumberg (188 App. Div. 23), in that the examination is for the purpose of proving plaintiff’s ease only. The facts shown to the court indicate that the defendants, and they alone, have personal knowledge of exactly what was done in the operation upon plaintiff’s mouth. Those facts the plaintiff must prove; and as the defendants alone have the knowledge, their examination is material and necessary to the plaintiff’s case. Jenks, P. J., Mills, Rich, Blackmar and Kelly, JJ., concurred.