1 Abb. N. Cas. 481 | New York Court of Common Pleas | 1877
In my opinion an examination of the plaintiff, in respect to the matter mentioned in the affidavit upon which the application is founded, is not authorized under any of the provisions of the Code, and no case for any such discovery as is required by rule 21 of the Court Rules is presented which justifies the order applied for. While by section 389 of the Code, an action for a discovery in aid of the prosecution or defense is abolished, the mode of examination given by the subsequent sections provides a substitute. By section 390, a party to an action may be examined as a witness, at the instance of an adverse party or of any one of several adverse parties, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify either at the trial or conditionally, or on commission. By section 391 it ic provided that instead of the examination being had at the trial, as provided in section 390, it may be had at any time, at the option of the party claiming it, before a judge of the court, or a county judge, or a referee to be appointed by a judge of the court, and at a time and place and upon summons and order as provided for.
By section 392 the party so to be examined may be compelled to attend in the same manner as a witness who is to be -examined conditionally, thereby making
By section 470 of the Code the judges of the higher courts were authorized to make such rules, not inconsistent with the Code, as might be necessary to carry it into effect, and by rule 21, they have provided that the application for an examination under section 391 of the Code should be upon affidavit disclosing the nature of the discovery sought to enable the party applying to prove his case or defense on the trial, and how the same is material in aid of the prosecution or defense, as the case may be (See Story Eq. Pl. §§ 321-326).
These provisions require in the application, if made after issue joined, the above mentioned statements of the Revised Statutes (2 R. S. 392, § 2), as well as those exacted in the 21st rule, showing the existing ma
The provision of section 392, for the obtaining or enforcing of such examination before trial “in the same manner as of a witness who is to be examined conditionally,” adopts the same measures and course of proceeding as in that case, so far as applicable,, and leaves the application to the judgment and discretion of the judge, on a case presented by affidavit that satisfies him the examination of such witness is required “to attain justice between the parties.” Rule 21 was adopted to the same end, and, unless inconsistent with the Code, was but a proper exercise of the authority given the judges to carry its provisions into effect. It was but in harmony with the intentions of the Legislature as expressed in section 392, to adopt the provisions of the Revised Statutes as to the mode of procuring the examination of a witness conditionally, and with reference to the prior law; the requirements of rule 21 innovate upon no absolute right, given by the Code, but merely prescribe the mode of its exercise. No substantial right, undisclosed by affidavit, can be affected by a denial of an application that does not conform to the statutes and rule, or fails to disclose such a case in all its features that from the circumstances so presented a denial of the application would plainly prevent “the attaining of justice between the parties.”
The right of a party to require his adversary to attend and be examined as a witness on his behalf, so far as it is a substitute for a bill of discovery, is confined to such matters as might be legitimately made matters of contest in such a proceeding. His applica
In Carr v. Great West. Ins. Co. (3 Daly, 160), C. J. Daly, at general term, held that the examination provided for by section 391 of the Code was limited to cases where a discovery wonld have been previously ordered in equity in aid of the prosecution or defense of the action, and in a note he states that rule 21, subse
The application in the present case by the defendant, to procure the examination of the plaintiff before trial, is founded on her affidavit.
[The learned judge here stated the substance of the affidavit as above given.]
She does not disclose the nature of her defense, as required by 2 Ii. 8. 393, § 2, subd. 2, or how any fact
It is notorious that such proceedings, instituted for such purposes, seldom result in the offering on the trial of the testimony thus taken, by the party procuring the examination, and that the examination thus had is ordinarily but for inquisitorial purposes and to pry into the case of an adversary. In my opinion, they ought not to be encouraged or allowed, except when it appears they are adopted in good faith, and purely for purposes of discovery of matters resting peculiarly in the knowledge of the adverse party, and the testimony sought is material to the case of a party seeking the examination, but never for the mere purpose of eliciting the grounds or sources of the adverse claims or the evidence by which it is to be established.I find no authentic report or evidence of any ruling or practice of any other of the courts of record of this State (as has been invidiously suggested) upon which this court can be regarded as backward in any just administration of those administrations of the Code, or as failing to afford any such proper means of “ scraping the conscience” of an adversary before trial, as the law affords. This application is denied.
Compare cases reported ante, pp. 327-355.