4 Abb. N. Cas. 252 | The Superior Court of New York City | 1878
No provision of the Code relating to depositions require the affidavit upon which an order for the examination of a party to an action, at the instance of the adverse party before trial, to be sworn to by such adverse party personally. If the affidavit sets forth the requisite facts, and is presented to a judge of the court in which the action is pending, he must grant the order, whether the affidavit be made by the applicant, his attorney or a third party (Dernan agt. VanZandt, 2 J. C., 69). I have held, in Ludewig agt. Pariser (See ante 498), that the examination of a party to an action before trial, at the instance of an adverse party, under sections 870 et seq. of the Code of Civil Procedure, is a matter of right, and no longer rests in discretion. The objection that questions may be addressed to the witness under examination which, if answered, would tend to criminate him, is prematurely taken; such an objection is the personal privilege of the witness, and can only be urged when a question having that tendency is addressed to him. In such case his refusal to answer may be justified, but the possibility of being asked such a question affords no justification for refusing to be sworn. As the examination is now a matter of right, under the existing provisions of law, it is unnecessary to consider whether a bill of discovery could have been resorted to for the same purpose under the former practice. The defendant must be sworn.
