3 Sandf. 718 | The Superior Court of New York City | 1851
The defendant, Livingston, was served with a subpoena to attend before a justice of this court for the purpose of being examined, pursuant to the provisions of chapter sixth of the twelfth title of the code. The complaint and answer have been served, but no reply has been put' in. The counsel for the plaintiffs admitted that he intended to reply, and the counsel for the defendants insists that such examination of the defendant Livingston cannot be had until the reply has been put in, and the case is at issue. I held in the case of Balbiani v. Grasheim, 2d Code Reporter 75, that a party cannot be examined as a witness in the cause, until the pleadings are all in and the cause is at issue.
Chapter sixth of the code declares that no action to obtain a discovery under oath in aid of the prosecution or defence of another action shall be allowed, but a party to an action may be examined as a witness at the instance of the adverse party, and this examination may be had, either at the trial or at any time before trial. It is also provided (§ 395,) that “ a party
The party is to be examined as a witness. He may be examined at the trial, or before the trial, on matters pertinent to the issue. He is examined, to prevent the necessity of other persons attending as witnesses, to prove facts which the parties themselves know and ought not to dispute. The law passed by the legislature previous to the code, was like the recent English act, and provided only for the examination of the party at the trial of the cause. The code has provided in addition, that such examination may be had before the trial so that -the proceedings at the trial may thus be often materially shortened.
But, though the code has abolished actions for a discovery, it has been thought by some, that a discovery may be had in the same action, where such discovery is necessary, in order to enable the party seeking the discovery to answer or reply. This may be so, but in that case such examination ought not to take place, unless by special order of the court, on cause shown
As this is an interesting and important question of practice, I have conferred with all my associates, and they are all of opinion with me, that where a party is examined as a witness, before the trial, merely for the purpose of avoiding the necessity of calling him at the trial, then such examination can only take place after issue joined.
I do not mean to decide, nor is it necessary to determine in disposing of this motion, whether a party can be examined by his adversary, in order to enable the adversary to answer or reply. It is possible that a case might be presented, where it would be evident that the ends pf justice required such an examination before answer or reply, even under the present law, which gives the absolute right to such examination after issue joined.
In the case before us, there is no pretence that the party sought to be examined is about to depart from the state, nor has any special application for his examination been made, founded upon any facts showing the necessity for such examination, in order to enable the plaintiff to reply. I shall not, .therefore, direct the examination of the defendant to proceed, but the plaintiff may, if he chooses, renew the application, founded upon affidavits, showing the necessity for such examination, before he replies, if in his judgment such necessity exists. In the cases