88 N.Y.S. 661 | N.Y. App. Div. | 1904
The respondent upon this appeal presented an affidavit to one of the justices of the Supreme Court stating that he was about to commence an action against a certain company, association or syndicate of persons called or known as the “ Canda Syndicate; ” that said syndicate was composed of John W. Young, John J. McCook, Irving M. Scott, Lewis Nixon, Charles J. Canda and other persons,
No action has been commenced against either Young or McCook, and the substance of this application is that the applicant, having a cause of action against Young, who, he believes, was acting for others, desires to examine one of the persons for whom it is alleged Young was acting, to find .out who were. Young’s principals and whom it is that is liable to him under his contract with Young; and the questioti presented is whether such an examination is authorized by any provision of the Code of Civil Procedure.
The taking of a deposition is regulated by the Code of Civil Procedure. Section 870 provides that “ the deposition of a party to an
Sections 856, 857 and 858 of the Code of Civil Procedure relate to the punishment of a witness.for refusing to testify, or to answer proper questions, or to produce a book or paper, or to subscribe his deposition. It follows from subdivision 6 of section 872 of the Code of Civil Procedure that, to justify the examination of a per-? son who is expected to be an adverse party, when no action is pending, the affidavit must show the circumstances which render it necessary for the protection of the applicant’s rights that the witness’ testimony shall be perpetuated; and that in the absence of such facts appearing by affidavit a person who is to be an adverse party cannot be examined until after the action is commenced. Section 872 of the Code of Civil Procedure recognizes the right of a party to an action to compel the adverse party to appear and submit to an examination before the service of the complaint where it is necessary to enable the plaintiff to frame a complaint, or after the case is
It is sought to sustain this order by Merchants’ National Bank v. Sheehan (101 N. Y. 176). That was an appeal from an order requiring a person to' appear and submit to an examination, and the court- say : “ The question presented is whether this section authorizes, an order for the examination of a person against whom an action is about to bp brought, upon the application of the person who is about to bring such action, but before it has been actually commenced; ” and the court, after considering sections 870 and 876 of the Code of Civil Procedure, say: “ On the whole we are of' opinion that the order issued in this case, on the application- of the bank, for the examination of Sheehan, against whom the bank was about to commence an action, was authorized, and that he was in contempt for disobeying it. The bank might have commenced its action and then have procured an order for the examination of the defendant. The granting of an order in such a case as this, before suit brought, upon the application of the proposed plaintiff, is within the discretion of the court, but it can rarely happen that justice will be promoted by granting an order on the application of a proposed plaintiff, before the commencement of an action, and the practice, unless carefully guarded, may lead to great abuses.” Subdivision 6 of section 872 of said Code, which would seem to limit the application for the examination of a person expected to be an adverse pai;ty, when no action is pending, to a case where proof is made of circumstances which render it necessary for the protection of the applicant’s rights that the witness’ testimony should be perpetuated was not considered ; and it seems to me that this provision, taken in connection with sections 870 and 876 of said Code, clearly limits the right to the examination" of a person expected to be an adverse party, when no
This construction of subdivision 6 of section 872 of the Code of Civil Procedure is, I think, confirmed by the other provisions of the section. Thus, by subdivision 1 of that section the person desiring to take the deposition must present an affidavit setting forth, “if no action is pending, the names and residences of the expected parties thereto.” The affidavit in this case expressly fails to comply with this provision, as the examination is sought for the purpose of ascertaining whom it is the plaintiff is to sue.
In Matter of Anthony & Co. (42 App. Div. 66) this construction was given to these sections of the Code of Civil Procedure. The court, after citing with approval Matter of Bryan (3 Abb. N. C. 289), which held that a witness cannot be examined under sections 871 to 876 of the Code of Civil Procedure for the purpose of enabling a plaintiff to frame a complaint in an action which he has not yet commenced, said : “ U nder such circumstances the testimony of a witness may undoubtedly be perpetuated. The applicant here asserts that , the application is made to preserve the witness’ testimony as well as to enable it to frame its complaint. But plainly the latter is the real purpose.” And after examining the affidavit upon which the order had been applied for, said : “ So far as these persons and this corporation are concerned, it needs no examination to enable it to frame its complaint. So far, however, as the manufacturing company is concerned, it states only its suspicions, or facts indicating the mere possibility of a cause of action. As to this latter company, it seeks the examination, not to enable it to frame its complaint, but to ascertain whether it has any cause of complaint. It is well settled that this cannot be done, either before or after the commencement of an action.” This case was followed by Matter of White (44 App. Div. 119), where Mr. Justice Barrett said: “The applicant asserts that his object here is to perpetuate De Selding’s testimony and to use it upon the trial of a contemplated action against Salmon. In this view he fails to state any circumstances which render it necessary for his protection that the witness’ testimony should be perpetuated. This he was required to do by subdivision 6
It.follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the order for the examination vacated, With ten dollars costs.
O’Brien, McLaughlin and Laughlin,' JJ., concurred; Hatch, J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Matter of Anthony & Co. (42 App. Div. 66).— [Rep.