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Webster v. Stockwell

3 Abb. N. Cas. 115 Court N. Y. Supreme Court, First Department; Chambers, English

Delivered by Lawrence, J.

Contents

Majority

p. 115
WEBSTER v. STOCKWELL.
N. Y. Supreme Court, First Department; Chambers,
November, 1877.

Headnote

Affidavit to Obtain Examination before Trial.—Service of Order.—Sections 872, 878, and 875 of Code of Civ. Pro.
If an affidavit to obtain examination states the facts required by section 872 of the Code of Civil Procedure, it is obligatory upon the justice to whom it is presented, to grant the order.[4]
p. 116
An order for the examination of a party before trial, will not be set. aside merely because the papers were served only upon the attorney, by whom the party has appeared.[4]
Form of a sufficient order.
Motion by defendant to vacate an order for his examination before trial.
Hume Webster and others sued Alden B. Stock-well, for $25,000, the amount of two drafts drawn by the defendant upon the Howe Machine Co. of New York.
The answer denied, on information and belief, the presentment and notice of non-acceptance and the protest. It also averred that the bills were given solely as collateral security for the payment of any balance that might be found due the plaintiffs, upon an open and unsettled account between the parties, and that the-account was still unadjusted, and had never been settled.
After issue, and upon an affidavit alone, stating the facts required by section 872 of the Code of Civ. Pro., an order[3] was granted for the examination of the-defendant as a party before trial.
p. 117
A copy of this affidavit and order was served upon the defendant’s attorneys, but no copy of either, nor of ■any summons, subpoena, notices, or other paper informing the defendant of the examination, was served upon him.
Upon the return day of the order, defendant’s counsel appeared and moved to vacate it, on the grounds that written notice in some form should have been served upon said defendant personally, and that ■such an affidavit alone was' not sufficient to enable the court to grant the order, for an examination of the pleadings and the issues thereby raised was necessary to enable the court to determine whether any examination could be properly had.
Michael H. Cardozo (Billings & Cardozo, attorneys), insisted:
I. Written notice of his proposed examination in some form, should have been served upon the defendant personally (Opinion of McAdam, J., in Riddle v. Cram,[4] decided November 10, 1877; sections 853, 874, 875, of Code of Civ. Pro.).
p. 118
II. The commissioners of the New Code did not intend to create a new remedy, but only to provide a substitute for a bill of discovery, as was the well settled object of section 391 of the old Code (Glenney v. Stedwell, 64 N. Y. 120 ; S. C., 1 Abb. New Cas. 327,
p. 119
and note on pp. 332 to 341; Phoenix v. Dupuy, 2 Id. 146 ; Carr v. Great West. Ins. Co., 3 Daly, 160 ; Wiggin v. Gans, 4 Sandf. 647 ; King v. Leighton, 58 N. Y. 383 ; Burnett v. Snyder, 41 Super. Ct. (J. & S.) 347).
p. 120
Section 873 of the new Code, in terms, requires the judge to whom the application is made, to grant the order' when an affidavit conforming to section 872 is presented to him; but this only means in such cases and under such circumstances as a discovery could, properly, formerly be had in equity ; not to compel a defendant to discover matter which might subject him to a penalty, forfeiture, criminal prosecution, and the like (Hare on Discovery, part 3, ch. 1, § 1; Wigram on Discovery, p. 60 §§ 83-94; Paxton v. Douglass, 19 Ves. 226; Bailey v. Dean, 5 Barb. 303 ; Phoenix v. Dupuy, 2 Abb. New Cas. 146, and cases cited pp. 158, 159; Schepmoes v. Bousson, 1 Id. 481).
III. An examination of the pleadings and of the issues is necessary to enable the court to determine whether an examination can be properly had (2 Story Eq. Jur. § 1497 ; Schepmoes v. Bousson, supra).
IV. Defendant’s affidavit shows that the proceeding is not to enable plaintiff to prove his case, but to discover grounds of defendant’s action in his suit against them. A discovery for such a purpose should not be allowed.
V. Subdivision 4 of section 872 must be interpreted, in the light of well established.practice and authorities, and the court must be able to see what the testimony is, and how it is material and necessary.
VI. The court has power to vacate the order.
VII. The court cannot enforce the order by punishing its disobedience as for contempt, because defendant was not personally served (Code of Civ. Pro. section 8, subd. 3; Temporary Act, section 2, subd. 2 ; section 10).
Rastus S. Ransom (Arthur, Phelps, Knevals & Ransom, attorneys), opposed.

The examination must proceed. Section 873 of the Code of Civil Procedure, in my

p. 121
opinion, renders it obligatory upon the justice to whom the affidavit is presented to grant the order, provided the facts required by section 872 be stated ;and appear in the affidavit.

The defendant having appeared in the action, the service on the attorney was sufficient [Code, section 875, and my memorandum in the case of Thompson v. Sickles, November, 1877.[1]

There was no appeal.

* The decision in the case of Thompson «. Sickles, here referred to, is as follows: Lawrence, J.—A more critical examination of the provisions of section 875 of the Code of Civ. Procedure than I was able to make when these papers were first laid before me satisfies me that my first impression was erroneous, and the defendant’s attorney is right in contending that service can properly be made upon the attorney for the plaintiff. That section provides, in substance, that where the party sought to be examined has appeared in the action, a copy of the order and of the affidavit on which it is granted must be •served upon his attorney, but if he has not appeared, they must be served upon the party (See also Mr. Throop’s note to section). Order granted.

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