In re Bryan — 3 Abb. N. Cas. 289

Majority

p. 289

MATTER OF BRYAN.

N. Y. Superior Court; Special Term,

December, 1877.

Headnote

Examination of "Witness before Commencement of Action.— What Affidavit Must Show.^[1]

Under section 871 of the Code of Civil Procedure, one who expects to be a party plaintiff in an action for slander cannot examine a witness to whom the alleged slander was spoken, unless the affidavit discloses what the slander was; or at least sufficiently describes the cause of action by setting out the slanderous words, or their substance.

In an action for slander, a witness cannot be examined for the purpose of enabling a plaintiff to frame a complaint.

Where no action is pending, the papers in a proceeding for leave to examine a witness should not be entitled in the action as expected to be brought; but “in re” or, “in the matter of the application,” &c.

The affidavit, under subdivision 4 of section 872, must show that the testimony of the person to be examined is material and necessary; and the bare statement that such testimony is material and necessary is not enough. Nor is the statement in the affidavit that the applicant is about to bring an action of this character sufficient to satisfy the provisions of section 873.

Motion to vacate an order for the examination of a person not a party, before commencement of action, under section 871 of the Code.

The order for the examination was granted on the following affidavit:

“ Thomas E. Bryan, being duly sworn, says that he is of the age of 40 years, and resides, and for 21 years last past has resided in the city, county and State of New York.

‘‘Deponent further says thathe is about to commence an action in this court, by Messrs. Winfield, Leeds & Morse, Ms attorneys, against Charles White and -- White, his wife. That the nature of the controversy

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which is expected to be the subject of said action, is to recover damages for divers false, slanderous and defamatory words, spoken and published, as deponent is informed and verily beleives, by said- White, of and concerning the plaintiff, in the presence and hearing of one Sarah Louise Beatty. That all the facts and circumstances connected with the utterance of said false, slanderous and defamatory words by the said defendant, the time when, and place where the same occurred, and the names of the parties who were present and heard them and other material facts, are peculiarly within the knowledge of the said Sarah Louise Beatty, and that in order to enable deponent to prepare properly for the prosecution of this action, and to frame his complaint therein, it will be neccessary for him to examine the said Sarah Louise Beatty, pursuant to the provisions of sections 871, 873, 873, &c., of the Code of Civil Procedure. Deponent further says that he is informed and verily believes that the said Charles White and-White, his wife, whom he expects to make parties defendant in the said action about to be commenced by him and the said Sarah Louise Beatty, all reside within the said city, county and State of New York, and that all of said parties are of full age.

“ Deponent further says that the testimony of said Sarah Louise Beatty is material and necessary to enable this deponent to prepare for the prosecution of his proposed action.”

Upon the return day, application was made to vacate the order.

Nash & Holt, and William Choate, for the motion.

Winfield, Leeds & Morse, opposed.

I. Where the provisions of section 871 have been complied with, by presentation of a proper affidavit, the granting of an order for the examination of the person desired to be examined is a matter of right (Cook v. Bidwell, 29 How.

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483 ; S. C., 17 Abb. 300 ; Glenny v . World Mutual Life Ins. Co., 40 N. Y. Super. [8 J. & S.] 92).

II. Such, an examination was a matter of right under the old Code. The legislature has seen fit to authorize such an examination before the commencement of an action; and hence the taking of this testimony is still a matter of right.

III. If the judge is satisfied from the affidavit that the applicant is about to commence an action, he must grant the order. The justice, having exercised that discretion, cannot vacate the order on that ground, since the affidavit is sufficient evidence in the absence of counter affidavits.

IV. This right is not confined to any particular class of actions, but may be had in any action; or where any action is about to be brought (Code, § 871).

V. The affidavit is in strict conformity with the provisions of section 872 and contains all the requisites of that section.

VI. All the requirements- of the Code having been complied with the order must stand.

The real nature of this application is to gain information upon which to frame a complaint.

The affidavit does not show enough to allow anything having the characteristics of testimony in a cause to be obtained. The giving of testimony pre-supposes an assertion of a claim, which the plaintiff must prove, while it is an absolute right of the defendant to have the inquiry confined to that. The cause of action is not stated or described except as to recover “damages for divers false, slanderous and defamatory words spoken and published as deponent is informed,” &c. This does not show the words or their substance, although from what the applicant knows or is informed he believes they were slanderous. In this condition of things testimony cannot be taken. It may be if the

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words could be given by the applicant that it would appear that they were not slanderous. The judge or-referee who takes the deposition cannot exclude any answer actually given, for by § 880 he “must insert therein every answer or declaration of the person examined which either party requires to be inserted.” But he must have some power to control the questions- and have a guide for that purpose, without deciding how little may be stated. To describe the nature of the action, something more must be stated as facts than to-show of what species it is to be ; but the particulars should be given as far as the applicant knows or is informed of them. In the present case it must be taken as true that he has stated all he knows or has been informed on the subject and he cannot state the words or their general import.

Then the question is, do sections 871-876, mean that a witness may be examined for the purpose of framing a complaint ? These sections "consolidate the provisions of law relating to the examination of a party by an adverse party, the taking of depositions conditionally, the perpetuation of testimony and the taking of depositions by consent.”

Under the Code of Procedure it was held that a party could be examined for this purpose. The ground was that section 398 of Code of Procedure forbade the bringing of an action to obtain discovery under oath, “in aid of a prosecution or defense of another action,” and the sections that followed were meant to give a full substitute for all the benefits of bills of discovery. The court of appeals held one of the objects of bills of discovery had been to get information from which to draw pleadings. This reason does not apply to depositions to be taken conditionally or to perpetuate testimony. In the provisions of the R. S. (2 Edm. p. 407, § 1 et seq. p. 414, § 33 et seq.) the testimony to be taken was only such as might be used on a trial, and was in

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respect of an issue either already formed or expected to be formed or described in the affidavit.

We are then at liberty to get the meaning of the Code of Civil Procedure from the terms of the Code, which I take to be one of the advantages and indeed-pleasures of a Code, and to say that the kind of deposition just mentioned in section 871, is that kind of a deposition which had the uses described in section 881. To me it seems clear that an examination for the purpose of framing a complaint on knowledge or information, will not, except by accident or incidentally, call -out- testimony that could be used on the trial. The examination must be confined to its object. When the -object of the plaintiff is to get enough information for pleading on information and belief, his satisfaction with the testimony fulfills the whole object of the proceeding. He could frame the inquiries so as not to inform the proposed defendant of enough to give him a full right of cross-examination or objection.

I am therefore of opinion that a witness cannot be examined for the purpose of enabling a plaintiff to frame a complaint. . An action for slander is not excepted by the terms of the Code, a judge cannot make the exception, however novel it may be, to facilitate the bringing of such suits. Nor do I think that such an application can only be made by a party who expects to be a defendant. The R. S. 2 Edm. p. 415, § 34, require due proof that the applicant has good reason to expect to be made a party to a suit; but by section 33, any person who expects to be a party to any suit about to be commenced, may cause the testimony of any witness material to him in the prosecution or defense of such suit to be taken conditionally and to be perpetuated, &c.

The same intimation is given in subdivision 4 of section 873 of the Code of Civil Procedure.

There are other objections to this application. The

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first was not noticed by counsel, who argued only the merits of the motion. It is substantial, however. No action is pending. This proceeding should not be entitled in an action, but in re, &c. This is proper practice, if there were no serious consequences upon a departure from it. But it is doubtful whether there could be a prosecution for perjury where there is no-action, and yet the deposition showed that it was taken in an action.

The next is, the affidavit does not show that the testimony of such person is material and necessary for the applicant (subdivision 4, section 872). It uses these words, but it appears that he is so without knowledge or information of what his cause of action is, that he must be without knowledge or information that the witness can give material or necessary testimony. Next (§ 873), for a like reason, there is no reasonable ground to believe that an action will be brought. It is only a matter of conjecture. The applicant, apparently, can have no ground to intend an action, until he has heard the testimony of the witness, and it may be that he will make up his mind then not to bring an action. Last, it is my opinion, but I will not decide .the motion on that ground, that Under general principles and subdivision 7 of § 872, viz., the affidavit must set forth any other fact, necessary to show that the case comes within one of the last two sections, or relevant to the questions specified in the next section, the affidavit should show why the testimony ought to be perpetuated or taken conditionally, rather than to wait for the trial.

The motion to dismiss should be granted.