Beach v. Mayor of New York — 4 Abb. N. Cas. 236

Majority

p. 236

BEACH v. THE MAYOR, &c., OF NEW YORK.

N. Y. Supreme Court, First Department; General Term,

March, 1878.

[Reversing 3 Abb. New Cas. 113.]

Headnote

Examination before Trial.—Requisites of Affidavit.—Code of Civ. Pro. §§ 870, 873-874.

An affidavit to obtain an order for examination before trial must comply with the statute, and state the particulars required.

The order should not be granted when sought for mainly, not as for a deposition to be used on the trial, but as a means of ascertaining information to enable the applicant to look up-other witnesses.

Appeal by plaintiff from an order.

The court, at special term and chambers, denied a motion of plaintiff to vacate an order of examination made under sections 870, 873, 873, and 874 of the Code of Civil Procedure (Eeported in -3 Abb. New Gas. 113).

Plaintiff appealed.

Winfield, Leeds & Morse, for appellant.

I. The affidavit upon which the order for plaintiff’s examination was granted is not sufficient to warrant or sustain the order. The Code of Civil Procedure (§ 873, subd. 4), requires an affidavit setting forth that the testimony of the person to be examined “is material and necessary for the party making such application, or the prosecution or defense of such action.” It is not stated in the affidavit that plaintiff’s testimony is or will be material for the defendant; nor is it stated that his testimony will be necessary for defendant in the defense of the action, nor is it stated that such testimony is both “material and necessary.” The language of the affidavit is that “in order to enable these defendants to prepare properly for the defense,” &c., it will be necessary. We submit that we are not

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obliged to assist the plaintiff in his preparations for defense.

II. The legislature, by section 872, subdivision 4, evidently intended to throw some restrictions around the unlimited power of examining adverse parties before trial. Where facts must be stated in order to compel the exercise of the judicial function they must not be mere assertions, but such statements as will enable the judge to act understandingly (Glenney v. Stedwell, 64 N. Y. 120 , 126; McIntyre v. Mancius, 16 Johns. 592 ; Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297 ).

III. The affidavit served does not state any facts as to which plaintiff is to be interrogated, so that the court may judge as to their materiality, and is hence defective (Elmore v. Hyde, 2 Abb. New Cas. 129).

IV. Independent of the statute, the court had no power to make the order, since the right to examine a party is purely statutory. The affidavit required by the statute alone confers jurisdiction. A defect in the affidavit is a jurisdictional defect, and is fatal. The affidavit here is not in compliance with the statute, since it does not state (1) the name of the plaintiff, (2) the name of the defendant, (3) whether defendant has appeared; or “ the name and the residence or office address of the attorney” by whom it appears, as required by subdivision 1 of section 872; nor the name of the party to be examined. These facts do not appear nsr the affidavit. Hence this order should be reversed.

V. The order is appealable ; it affects a substantial right (Green v. Wood, 6 Abb. Pr. 277 ; Cook v. Bidwell, 29 How. Pr. 483 ; Glenney v. World Mut. Life Ins. Co., 8 J. & S. [40 N. Y. Sup.] 92; Jeffras v. McKillop, 2 Hun, 351 ; Morehouse v. Yerger, 6 J. & S. [38 N. Y. Sup.] 50).

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Wm. C. Whitney and Thomas P. Wickes, for respondent.

I. The affidavit is expressed in substantial compliance with the requirements of the Code, and is in conformity with the statute. When a statute directs certain proceedings to be done in a certain way or at a certain time, and a strict compliance with these provisions of time and manner does not appear to prejudice any essential rights, such proceedings will be held valid, though the strict provisions of the statute may be' disregarded (Sedgw. Stat. & Cons. L., 2nd ed. 316, 317, et seq.).

II. The affidavit being in substantial compliance with the code, and stating all the facts required by the statute, the original motion before Judge Donohue was properly made, and the order of November 14, 1877, properly granted.

III. The order for the examination was granted ex-parte, in the discretion of the court. When the application was made to vacate, &c., the learned judge had all the papers before him, and, finding that the affidavit disclosed such a case as gave the court power to act, denied the application, in the exercise of his discretion. This denial cannot now be reviewed (Glenney v. Stedwell, 64 N. Y. 120 , 128). Neither is it appealable under the Code (Vide Code, § 1347; and Wallace v. American Linen Thread Co., 46 How. Pr. 403 , a case precisely in point).

To entitle a party to an action to examine another party thereto, or a person not a party, before trial,, it is required by section 872 of the Code of Civil Procedure, that the person desiring to make such examination, present to one of the judges named in such section, an affidavit setting forth as follows : names and residences of all the parties in the action, and whether or not they have appeared, and, if either of them has appeared by attorney, the name,

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residence, and office address of the attorney, the nature of the action, and the substance of the cause of action, and the judgment demanded, the nature of the defense, if any has been interposed, the name and residence of the person to be examined, and that the testimony of such person is material and necessary to the party making such application, for the prosecution or defense of such action, and either the place where such party is sojourning, or where he regularly transacts business, and any other fact necessary to show that the case comes within section 870 or 871, or relevant to the questions specified in section 873 of the Code of Civil Procedure.

Nothing seems easier than to prepare an affidavit in such case, in conformity to the requirements of the section, and the court ought not, therefore, to allow slipshod and argumentative affidavits as a substitute for those required by the statute. An examination of the affidavit in this case shows that it fails to comply with the requirements in several particulars. For instance, the affidavit does not state the names and residences of all the parties to the action, and whether or not they have appeared.

Those are the facts required to be verified by affidavit' ; they are not indicated in any way except as the names are given by the title of the action preceding the affidavit. The attorneys of the plaintiff are named and an address is given, but it is not stated whether it is the residence or office address of the attorney.

The name of the person to be examined is not stated, except by calling him the plaintiff, and his testimony is not stated to be material and necessary for the party making the application for the prosecution or defense of the action. The action is brought to recover for an alleged injury suffered by the plaintiff, while riding or driving on one of the avenues in

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the city of New York, by means of the alleged unsafe and dangerous condition of the pavement; and it is further stated that all the facts and circumstances connected with the happening of the alleged accident, and the hour of the day or night on which' it is stated to have occurred, and the names of the bystanders or witnesses, if any there were, and the nature and extent of the plaintiff’s injuries, are not at all within the knowledge of the defendants’ department of law, and it is stated that in order to enable the defendants to prepare properly for the defense of this action, it will be necessary for them to examine this plaintiff before trial under the provisions of the Code above named.

This is not stating that the testimony is material or necessary for the party making the application, for the prosecution or defence of the action, but, at most, is a statement that it is necessary for the purpose of enabling the plaintiff to prepare properly for the defense of the action.

• The provisions of the Code contemplate an examination of the party as a witness in the action itself, with the view to the use of his deposition as testimony upon the trial. ■

But this application shows, that the object was not to get his testimony to use upon the trial, but to force him by an examination to furnish to the defendants the information necessary to enable them to look up witnesses to be used against him.

This doubtless may be done by resorting to such an examination as one of the necessary incidents to the taking of testimony ; but where it is stated to be the object and purpose of the examination, the party fails in material respects to comply with the requirements of the Code in his affidavit.

We are of the opinion that the court below should have vacated its order, and that the order denying the

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motion should be reversed and the motion granted with ten dollars costs besides disbursements.

Beady and Ingalls, JJ., concurred.

Cases cited

Glenney v. Stedwell 64 N. Y. 120 N.Y. 1876-02-01 at 126, at 128 p. 237, p. 238
M'Intyre v. Mancius 16 Johns. 592 N.Y. Sup. Ct. p. 237
Bailey v. Dean 5 Barb. 297 N.Y. Sup. Ct. 1848-12-04 p. 237
Green v. Wood 6 Abb. Pr. 277 N.Y. Super. Ct. p. 237
Cook v. Bidwell 29 How. Pr. 483 N.Y. Sup. Ct. p. 237
Wallace v. American Linen Thread Co. 46 How. Pr. 403 N.Y. Sup. Ct. p. 238