In re Darling

64 N.Y.S. 793 | N.Y. Sup. Ct. | 1900

Gayitob, J.:

The objection that one who expects to be a party to an action about to be brought may not examine a person he expects to make an adverse party, for the purpose of ascertaining the persons who should be made parties to the action, or obtaining facts necessary to draw his pleadings, is not well taken. Chancery, when a separate court, entertained bills for the discovery of such facts in respect of an expected as well as of an existing action at law; and its jurisdiction passed to the Supreme Court when the court of chancery was abolished (Const. 1846, art. 6, § 3). Such bills of discovery were thereafter entertained by the Supreme Court on its equity side (Glenny v. Stedwell, 64 N. Y. 120). Then came the new system of assimilated practice for both actions at law and suits in equity, embracing, among other things, the method of obtaining all such discoveries by an examination under an order made in the action itself, or preceding its commencement, instead of by filing a bill in equity (Code Pro., § 389 et seq.; Code Civ. Pro., § 870 et seq.). This method was intended to be, and, well understood, is, a complete and adequate substitute for the former chancery method of discovery in all respects. Whatever obscurity there now is on the subject seems to result in part from the effort at brevity in the Code provisions which were substituted for such chancery practice, and in part from forgetfulness by a new generation of lawyers of the practice which such provisions were substituted for. Section 870 of the present Code allows the deposition “ of a person who expects to be a party to an action ” to be taken; and while the language of the entire section falls short of specifically saying that it may be taken at the instance of a person who expects to be an adverse party, yet it has been ■settled that that is its meaning (The Merchants’ Nat. Bank v. Sheehan, 101 N. Y. 176). And I see no foundation for the effort to ■construe the Code provisions so as to exclude such an examination,? before action brought for the purpose of ascertaining the persons ivho should be made parties, or obtaining facts necessary to draw the •complaint The object was to make the said provisions cover all that ■could formerly be accomplished by a bill in chancery, and their language is broad enough for that purpose. Why resort to a construction which curtails such purpose? The requirement of section 872 is that the affidavit shall show that the testimony of the person to be examined “ is material and necessary for the party making such examination or the prosecution or defense of such action.” The context- shows that the word “ party ” includes an expected party, and the words “necessary for the party making such examination ”, include every necessity, including the necessity for testimony for the purpose of ascertaining who the persons who ■should be made parties are, and framing the pleading. There is no reason to confine the meaning of such necessity to the purpose •of getting testimony for the trial. To do so would so curtail the 'Code provisions as to exclude an examination of an expected adverse party in order to ascertain who should be made parties, or to ■get facts necessary to draw a pleading; and. instead of any such thing having been intended by their adoption, the intention was to •embrace every case where discovery could formerly be had by a bill in equity; and that was one of the cases. It is said in Matter of Anthony & Co. (42 App. Div. 66) that the proposed adverse parties “ must be definitely, and not tentatively,” named in the affidavit, and that it must be made to appear that the applicant has a ■cause of action against such “specific” persons. If this had to govern here it would not permit this order to stand. But it is known to the profession that certain technical decisions in Mew York county in the matter of examinations before trial and before the action is brought have not been followed in the rest of the State. The decision in the Matter of Weil (25 App. Div. 173) in this judicial department may be cithd as an illustration, and it is also in point here. If the Code provisions allowed such an examination as is sought here only in cases where the applicant could disclose the “ specific ” persons against whom his cause of action is, they would be useless, for in such cases he would need no examination to find .out who they are.

The affidavit, however, is deficient in not stating, as required hy section 872. that the persons expected to he made defendants are of full age, and also in that it is made hy the attorney, and does not disclose a sufficient reason why the plaintiff does not make it, or that the facts sought are not within his knowledge.

The motion is granted.