32 Barb. 655 | N.Y. Sup. Ct. | 1860
By the Court,
The revised statutes (2 R. S. 199, § 21 &c.) authorize this court to compel the discovery
Under section 390, a party may be examined by his adversary, in the same manner as any other witness, either at the trial, or conditionally, or upon commission; and under section 391 the examination provided for in section 390, (that is, the examination of a party in the same manner as any other witness may be examined,) may be had at any time before trial, at the option of the party claiming it, on a previous notice of not less than five days. It cannot be doubted that any other witness may be required and compelled, on examination, at or before a trial, to produce his books &c. containing matter in writing pertinent to the issues and competent to be given in evidence in the action; or necessary to enable the witness by reference thereto to testify in the cause. And, in my opinion, it is clear, that, under these provisions of the code, a party to an action may not only be examined at the option of the adverse party, in the manner provided, but may also be required and compelled to produce, on such examination, books, papers, &c. which are under his control; and such I understand to be the effect of the decisions on this point.
Perhaps the orders made in this case were more comprehensive, in terms, than they should have been; but whether so or not, the proper mode of proceeding under them, and in other like cases, in my opinion, will be to proceed with the examination of the party called as a witness^ until it shall be
Sutherland, Ingraham and Bonney, Justices.]
The order appealed from should he affirmed, without costs to either party; and the examination of the plaintiff should proceed in the manner above indicated.