37 N.Y.S. 1078 | N.Y. App. Div. | 1896
We think that the order for the examination of the witness was proper. Section 885 of the Code of Civil Procedure gives the party who intends to make the motion the right to obtain the affidavit or deposition of a person hot a party who is possessed of any information which will assist the moving party. Such a deposition is simply an affidavit by a person not a party who will not voluntarily testify to facts' within his knowledge, which, if necessary for the use of a party to an action upon a motion, the court can compel him to give. Under such an'order, however, we can find no warrant for the issuing of a subpoena duces tecum, such as was issued by the referee, requiring the productioh of books and papers of the company. As said in Fisk v. Chicago, Rock Island & Pacific R. R. Co. (3 Abb. Pr. [N. S.] 433): “ The examination is not * *' * a discovery. If the witness does not know the fact’' sought to be proved, then his affidavit is not ‘ necessary.’ Tie cannot be required either to take any means to inform himself nor to produce any thing, which contains such information.” What the section provides is for an affidavit or deposition of facts which are within the knowledge of the person sought to be examined, and he is not required to obtain from outside sources information for a party to the action, nor is he «compelled, by an examination of books and papers of a railroad company to qualify himself as an expert accountant for the convenience of a party.
The order, so far as it.directs the examination to be taken, should be affirmed; so far as it refuses to set aside subpoena it should be reversed; and so much of the motion as sought to have the subpoena duces tecum set aside should be granted without costs.
Present—Ya$t Beunt, P. J., Williams, Patteesok, O’Beien and Irr&EAHAM, JJ.
Order, s.o far as it directs the examination, affirmed; so far as it refuses to set aside subpoena, order reversed; and so much of the motion as sought to have the subpoena duces tecum set aside, granted, without costs.
