203 A.D. 9 | N.Y. App. Div. | 1922
The motion is grounded upon that provision of the order which directs that the secretary of defendant “ submit to examination and testify concerning the matters alleged in the amended complaint herein and any orders or correspondence in reference thereto,” it being claimed that this order does not state “ the issues upon which the witness is to be examined.” The defendant cites cases decided both under the Code of Civil Procedure and under the Civil Practice Act, which seem to sustain the proposition that an order for examination upon the issues framed by the pleadings, or concerning the matters alleged in the complaint, is not a sufficient stating of the issues upon which the witness is to be examined. The defendant relies upon section 290 of the Civil Practice Act. This is a provision which states that which must be contained in the notice of taking testimony where no order for taking the testimony is had from the court. The section provides: “A party to an action desiring to obtain testimony therein by deposition shall give reasonable notice to bis adversary, or if his adversary has appeared by attorney, to such attorney, stating in writing
“1. The person before whom the testimony is to be taken;
“ 2. The time and place at which it is to be taken;
“3. The name or names of the person or persons to be examined;
“ 4. The issues upon which such person or persons are to be examined.”
Section 291 of the Civil Practice Act provides: “ Any question as to the right to take the testimony, or as to the time or place, or as to the matters or issues as to which the testimony is to be taken, or as to the persons before whom it is to be taken, may be raised by a motion to vacate or modify the notice. * * * The motion shall be heard upon the notice of the taking of testimony, the pleadings, if any, and upon such affidavits in support of such notice, and in answer thereto, as the parties may submit. If the taking of the testimony be not authorized by the provisions of this article the court shall vacate the notice.” These are the only provisions in the sections of the Civil Practice Act which require that the issues upon which the witness is to be examined shall be stated and apply only to those cases in which it is sought to take testimony upon notice without an order of the court. The right to take the testimony of a party to an action by deposition during the pendency of an action and before trial is given in section 288 of the Civil Practice Act, as follows: “ Any party to
The right to take the testimony of a party under section 288 is broad and unrestricted. We find no provision anywhere requiring that the court, in making its order, shall define specifically the issues upon which the witness is to be examined. There is only
We do not find any conflict between this decision and the decisions of the Appellate Division in another department of the-State. (Bamberger v. Cooke, 181 App. Div. 805; Smith-Eisemann Corp. v. Eisenbach, 188 N. Y. Supp. 479; Newman v. Potter, 201 App. Div. 335.) The motion to go to the Court of Appeals should be denied.
This court having affirmed the order of the Special Term which directed an examination, it.is1 not necessary to send the parties
All concur; except Cochbane, P. J., not voting.
In the first case: Motions denied, with ten dollars costs.
In the second case: Motions denied, without costs.