Rice v. Rice, 47 N.J. Eq. 559

Rice v. Rice

47 N.J. Eq. 559 | New York Court of Chancery | 1890

The opinion of the court was delivered by

Beasley, C. J.

From the statement prefatory to this opinion, it will appear that the point to be decided on this appeal is, whether a master in chancery, who has been directed to take the depositions of witnesses, has authority to order a woman, who is present under an order to appear as a witness, to disclose her features, by removing her veil, before she has been placed on the witness-stand.

That every court of judicature, as an indispensable attribute,is possessed of the power to require that every person, who is *561present as a party, or wlio is a witness under examination, to disclose his or her face to the court, or to the jury if there be one, would not seem in any degree questionable. Without such exposure there would be no certainty who the person really was who assumed to act as party or witness. To order such persons to expose their faces to view is common usage in every court, and thus far the practice seems not to be open to any question.

But whether this judicial power can be executed over a person who has not presented himself as a party, or over one who has not assumed the office of witness, has, as yet, never been considered or decided in this state, nor does the present occasion call for its determination.

This dispensation from an examination of this subject arises from the fact that the master in chancery is not a court in any sense of the term.

Prior to the year 1883 the entire function of the officer in question was, in all respects, ministerial. He was empowered to swear the witnesses brought before him by the respective parties; to write down the questions put to the witnesses and to record their answers, noting in his minutes such objections as were taken to any part of the testimony. The record thus made was deposited in the office of the clerk in chancery, to be passed upon, at the heating, by the chancellor, and ultimately, as the case might be, by this court on appeal. This was the entire scope of the master’s authority.

In the year just referred to, that is, in the year 1883, his Honor Chancellor Runyon promulgated a rule of court making it the duty of the examiner before whom, in its own language, “ testimony is taken, to decide upon all objections to evidence, and his decision shall be final unless reversed on appeal to the chancellor, which is to be taken as hereinafter provided.” The rule then proceeds to mark out the course of such appeal.

On the face of this rule it is manifest that by its form the functions of the masters in chancery are materially and quite radically changed. At least this is the obvious purpose of the new regulation; for what was before a naked ministerial office is *562here attempted to be converted into a judicial one, pro hao vice. Antecedently to the introduction of this provision the right of decision upon the admissibility of testimony in every equitable procedure was vested in the chancellor himself, and it may be was thus inalienably established by the constitution of the state; but the pi’esent case does not, of necessity, call for an investigation of this subject, which is of much interest, that is, whether a prerogative of the chancellor of this kind can in any measure be diverted to a subordinate officer of the court, by rule of court, or even by legislative sanction. The topic was not embraced or alluded to in the argument, and will not be considered; but, on the contrary, it will be assumed that the rule is operative and confers on the masters all the power imputed by its terms.

Postulating, therefore, the power of the master to decide, in the words of the rule, “ upon all objections to evidence,” it is obvious that the question now to be passed upon is simply whether when this witness objected to removing her veil, and when her counsel insisted that such order could not be made, the position then taken was an objection to evidence. Plainly it was not such. The plaintiff, when he applied to the master to order a removal of the veil, made no offer of any evidence, and equally when the other side resisted the application there was no objection to evidence. It was conspicuously an endeavor on the part of the plaintiff to obtain a discovery in aid of his testimony. This case is fundamentally different from those illustrated in the decisions that were cited by counsel, as, for example, the one in which the public prosecutor in a criminal trial applied to the court to compel the culprit to uncover his arm for the purpose of showing to the jury certain marks upon it. The difference between that instance and this is, that in the reported case the marks on the'arm became, by the disclosure, proofs in the cause, whereas in the case in hand, the face unveiled would have had no such result. The entire effect of the disclosure asked for by the plaintiff would have been to enable his witness to obtain a more perfect knowledge of the subject to which his testimony related.

*563The master, very plainly, had no power in the premises, and, •consequently, the action of the vice-chancellor on the appeal was likewise a nullity.

The decretal order is set aside, with costs in both courts.

For affirmance — None.

For reversal — The Chief-Justice, Depue, Dixon, Garrison, Magie, Reed, Van Syokel, Brown, Smith, Whitaker — 10.