Majority
p. 246LUDEWIG v. PARISER. N. Y. Superior Court; Special Term, March, 1878.
Headnote
Examination of Parties before Trial.—Requisites of Affidavit.—Order.—Judicial Legislation.—Code of Civ. Pro. §§ 870, 872, 873, 880.An affidavit to obtain an order for the examination of parties defendant before trial, which sets forth the names and residences of all
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the parties to the action, and that the defendants have not appeared, the nature of the action, the substance of the cause of action, the names and residences of the persons to be examined, that their testimony is material and necessary, and that they are parties to the action, contains all the requisites necessary under section 872 of the Code of Civil Procedure.[1]
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The provisions of sections 873, 873 and 880 of the Code of Civil Procedure, deprive the court of any discretion in regard to the examination of parties to suits by them, as parties, and make such examination a matter of absolute right.
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The inconvenience, impolicy, hardship or injustice of a law affords no warrant for its abrogation by the judiciary.
Motion to vacate an order fof the examination of parties defendant before trial.
This was an action by Gustav Ludewig against Eva Pariser and Henry J. Welsh to recover possession of certain personal property.
The motion was made upon the following affidavit: [Title of the cause.]
[Venue.]
“Gustav Ludewig, being duly sworn, says that he is the plaintiff herein. That this action was commenced on the 28th day of January, 1878, to recover the possession of certain personal property from the defendants above named, and the immediate delivery thereof to this deponent is demanded in and by said action.
“Deponent further says, that under and in pursuance of proceedings had for the immediate delivery of the personal property claimed in this action to this deponent, the sheriff of the city and county of New York has taken from the possession of defendants certain articles, to wit. [Two billiard tables, and so on, enumerating the articles.]
“Deponent further says, that the defendants have still in their possession, as he verily believes, the other articles claimed in these proceedings and in this action by him from them, and this deponent says that the defendants are keeping same hidden and concealed in order to keep the same out of this deponent’s possession, and to defeat the object of this action.
“That the summons, affidavit and undertaking herein have been served on both of the defendants herein, but neither of them have as yet appeared.
“That deponent resides at No. 110 Bleecker street, in the city of New York.
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“That the defendant Eva Pariser resides at No. 13 Stuyvesant place, New York city, and the defendant Henry J. Welsh does business at No 104 Thompson street, in the city of New York, and resides at 343 East One Hundred and Twenty-eighth street, in the city of New York.
“Deponent desires to examine the defendant Eva Pariser and the defendant Henry J. Welsh as to and concerning the articles claimed by the plaintiff herein, and which articles are particularly set out in the affidavit and papers served upon said defendants and each of them with the summons.
“That the testimony of the defendants and each of them is material and necessary for the plaintiff in the prosecution of this action.
“That plaintiff expects to prove by the defendants and each of them, that the property claimed by this plaintiff was removed by them from the premises No. 353 Bowery, in the city of New York; the whereabouts now of said' property mentioned; its value; and such other matters as are pertinent to the maintenance of this action.
“Deponent further says that the sheriff of the city and county of New York is unable to secure said property or discover where the same now is, nor what disposal has been made thereof, and deponent desires to examine the defendants above named and each of them for the purpose of discovering and unearthing the same.”
[Jurat.] [Signature.]
Upon this affidavit the following order was granted:
“On the annexed affidavit of Gustav Ludewig, plaintiff herein and verified on the 4th day of February, 1878. Ordered, that you, Eva Pariser and Henry J. Welsh, in said affidavit named, appear and each of you do appear before me, one of the justices of the superior court of the city of New York at the chambers
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of the justices thereof at the court-house in the city of New York, on Wednesday, the 13th day of February, 1878, at ten o’clock in the forenoon of that day, and be examined, and submit to an examination, and make depositions in the above action, concerning the matters set out in the affidavit of the plaintiff concerning which your testimony is sought by the plaintiff in this action. Let a copy of this order and affidavit be served on the said Eva Pariser and Henry J. Welsh not less than five days before the 13th day of February, 1878.”
Dated
[.Signature of the judge.]’
Robert H. Pollock, for plaintiff.
Goff & Pollock, for defendant.
The affidavit upon which the order for the examination of the defendants was made sets forth the names and residences of all the parties to the action, and that the defendants have not appeared; the nature of the action, the substance of the cause of action, the names and residences of the persons to be examined; that the testimony of such persons is material and necessary to the prosecution of the action, and that the persons to be examined are parties to the action. These are all the requisites to the affidavit which, under the provisions of section 872 of the Code of Civil Procedure, must be presented to the judge by a person desiring to take the deposition of his adversary in a pending action. By section 873 the judge to whom such an affidavit is presented must grant an order for the examination if an action is pending. And by section 880 the judge or referee taking the deposition must insert therein every answer or declaration of the person examined which either party requires to be inserted. I am of opinion that these broad and sweeping provisions of law deprive the court of any discretion in regard to the examination of parties to
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suits by them, as parties, and make such examination a matter of absolute right. The argument ab inconvenienti is most forcible against allowing such an invasion of long-established rights and usages ; but the inconvenience, the impolicy, the hardship and injustice of a law afford no warrant for its abrogation by the judiciary. The remedy.is in the legislature and not. in the courts. The motion to vacate the order must be denied and the examination must proceed.