3 Daly 70 | New York Court of Common Pleas | 1869
The motion was properly granted.
1. Because the party was required to make an affidavit prepared for him by the adverse party, which he swears he could not make.
This is of itself sufficient, but I think in addition,
2. That the section 401, subd. 7, providing that a referee may be appointed by order to take the affidavit of “ any person,” to be used upon a motion, who shall have refused to make it, does not apply to a party to the action; for the reason that § 389 declares that no examination of a party shall be allowed on behalf of an adverse party, except as prescribed by chapter vi, which provides only for his examination the same as any other witness at the trial, or conditionally, or upon commission; or, before trial, upon five days’ notice and for good cause shown, before a judge of the court or a county judge; which latter provision I have always regarded as intended to be a summary substitute in place of the former action for the discovery of evidence, which is abolished by this chapter. In Fisk v. The Pacific &c. R. R. Co. (3 Abb. N. S. 430), it was held that a party to an action as well as any other witness, may be obliged to make an affidavit under the seventh subdivision of § 401; but the judge in that case, owing to the brief interval between the argument and the decision and the other judicial demands upon his time, was merely able to state, in general terms, his conclusion, and whether he had or had not considered the provision of § 389, does not appear. Subdivision 7 of § 401 was added by amendment in 1862, for the obvious purpose of giving the court the power to order the affidavit in such cases to be made before a referee (Clork v. Brooks, 26 How. Pr. 254), as this court and the Supreme and the Superior Court, had already the power under the Revised Statutes and by special acts, to compel an affidavit in such cases (Laws of 1840, p. 223; 2 Rev. Stat. 554, § 24). Hnder these statutes “ any witness ” could be compelled to make his affidavit or deposition, and after the passage of the law of 1847, allowing parties to be examined as witnesses, it was held in Stake v. Andre (9 Abb. R. 420), in view of the subsequent enactment of § 389 in the Code, that
The amendatory section of 1862, § 401, subd. 7, uses the words “ any person,” but it would be going very far to hold that the use of these words repealed the .positive provision of chapter vi, that the examination of a party should not be allowed except as provided for in that chapter. The statutory provisions making parties witnesses, is in restraint of the common law, and are not to be carried beyond what is clearly and unmistakably expressed; the rule being the one laid down in Dwarris, that it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required; that the inference must be that they did not intend to make any alteration other than what was specified and plainly pronownoed / for if they had, it is to be expected naturally, that they would have expressed it (Dwarris on Statutes, p. 695). As the legislature did not, in enacting subdivision 7 in § 401, repeal in express terms the prior provision in § 398; both sections must be taken together, and that construction given which will harmonize the one with the other. This is done by holding, that the words “ any person,” in the later enactment, means any person other than a party to the suit;—that in this respect the law was intended to be left as it was previously when parties could be examined as witnesses in the manner provided for by chapter vi, and that what was simply intended by the enactment was to allow such affidavits or depositions to be taken before a referee as well as before a judge of the court or by a commission.
The order must be affirmed.