Palmer v. Van Doren

2 Edw. Ch. 192 | New York Court of Chancery | 1834

The Vice-Chancellor:

This is an application to examine a sole defendant in a cause. It is attempted to be founded upon two points: 1. That certain disclosures, relative to the defendant’s income and property, are necessary, before the complainant can furnish his proof; and 2. That as no clue is given, by the answers of the defendant, to the facts which the deponent believes to exist, therefore (and until after an explanation of these) the complainant cannot give a list of his witnesses.

Upon the opening of this motion, I considered it to Be $ novel one; because, as Van Doren is the only defendant?an examination of this person would be a bar to a decree. There can be no decree against a defendant upon facts to-which you examine him as a witness. If there be more defendants than one, an examination of a defendant may be-had; and you may get a decree against another defendant upon such facts : but you cannot have a decree against the party examined upon the facts which he has disclosed as a witness, although you may upon facts to which he is not examined.

It appears, in this case, that a second and third answer have been required—the last of which was decided to be sufficient; and yet, for all this, the complainant wants disclosures from this, sole defendant through , the examiner’s office.

The way to test an interested party-defendant is through-his answer: and not upon interrogatories in the office of an examiner.

The case of Nightingale v. Dodd, Amb. 583. has been referred to in support of the present motion. But that was a case in which there were several defendants ; the application was to examine one of them, who, although interested in the case, was not interested in the matter to which he was examined; and the sole point decided there is this, that a defendant who has been examined under the usual order as a witness, may have a decree against him upon other matters to which he was not examined—thus also showing that a decree cannot be had against such defendant in relation to facts to which he is examined as a witness.

I must deny the motion, with costs, ^(a)

(a) In connection with the principles embraced by this decision, see the' cases referred to in notes to Blunt’s edit, of Ambler, V. 2. p. 583. In Carey, p. 63, we have the following: “ Forasmuch as it is informed, the trial of the truth of the matter resteth altogether in the declaration of the defendant; it is therefore ordered, that the defendant shall be examined upon interrogatories to be administered by the plaintant, upon whose examination, if the matter fall not out for the plaintant, then the plaintant to pay the defendant costs, and the cause to be dismissed. John Tyfield plaintant, John Vimore and Alice defendants, anno. 2. Eliz. fol. 122.”