8 Daly 363 | New York Court of Common Pleas | 1879
The order allowing the assignee to sue will be granted, and whatever examination of parties or witnesses may be necessary to sustain the action must be had in that action. The examination allowed by the assignment act is to aid in the administration of the assignment. If it is necessary to perpetuate testimony, then it should be made under the Revised Statutes, and subject to the restrictions and limitations which by adjudged cases is to be applied to such proceedings. What is sought to be done in this application is to go into the whole alleged cause of action, by the examination of witnesses and the filing of their testimony, before any action is commenced. It is only necessary to suggest the gross abuses that would arise should such a proceeding as this be allowed. The examination as to the whole subject of enquiry has nothing to guide it, and may be as extensive and as irrelevant as the person who obtains such an order wishes. It is impossible for the referee to determine in advance what may or may not be irrelevant, and the most unrestrained license of enquiry would be the consequence. When an action is commenced, and an issue or issues have been found, there is then a defined limit to the enquiry, and a means of determining what is, or is not, relevant.
If an examination is necessary to enable the plaintiff to frame his complaint, he must specifically show why a discorrery is necessary for that purpose; or if a discovery is necessary to enable the plaintiff to give or procure evidence, the necessity for it must be equally shown. All that -was evidently intended by the 21st section of the assignment act was that parties should have in their assignment proceedings the same powers as to compelling the production and examination of books and papers, the discovery
