48 Barb. 522 | N.Y. Sup. Ct. | 1867
The plaintiff obtained an order, at chambers, to examine the defendants, by their president and secretary. On the return of the order, objection was made to the examination of the president and secretary, .on the ground that they were not the defendants, and the judge denied the application. The plaintiff appealed to this court.
I can see no ground for such an examination. The 390th and 391st sections of the Code evidently refer to an examination of parties, not of the agents, officers or servants of parties to a suit. I should hardly suppose that it ever entered into the minds of the legislature to bring up a corporation for examination as a witness. A corporation, as such, cannot testify, and can only declare its acts by the resolutions passed by the board of directors. The president or secretary is not the corporation : he cannot bind the corporation, except by its authority ; nor can either testify to facts, as known to the corporation, because they were known to him, personally.
Either of these parties can be used as a witness on the trial, but only as a witness, and can be examined as such under other provisions of the Code, where a proper case therefor is made out.
The case relied upon by the plaintiff—Place v. Butter
If the party needs a discovery he can obtain it, on proper papers, for a discovery of entries in the books and papers of the defendants. If there are none such, I do not see that he can take the personal knowledge of the officers and charge that to be the knowledge of the company. If he cannot do this he has no right to claim that the officers are the defendants ; but if he wants their evidence he must get it in the same way as the evidence of any other witness is obtained.
There might have been another objection to this examination now ; that is, that it is premature. The action is for. an accounting. Until it is decided that the plaintiff is entitled to an accounting, there is no propriety in taking evidence connected therewith.
The order at special term was proper, and should be affirmed.
Leonard, Clerke and Ingraham, Justices.]