Corbett v. De Comeau — 4 Abb. N. Cas. 252

Majority

p. 252

CORBETT v. DE COMEAU.

N. Y. Superior Court; Special Term,

March, 1878.

Headnote

Affidavit by Attorney.—Evidence.—Examination of Party before Trial.—Requisites of Affidavit.—Code of Civ. Pro. §§ 870, et seq.

If the affidavit to obtain an order for the examination of a party to an action before trial sets forth the requisite facts, and is presented to a judge of the court in which the action is pending, he must grant the order, whether the affidavit be made by the applicant, his attorney, or a third party.

The examination of a party to an action, before trial, at the instance of an adverse party, under sections 870, et seq. of the Code of Civil Procedure, is a matter of right, and no longer rests in discretion.^[1]

That answers to certain questions on such an examination may tend to criminate him, affords no justification for refusing to be sworn.^[2]

Motion to examine party defendant before trial.

This was an action by John J. Corbett against Louis De Comeau, for libel.

W. F. Severance, for motion.

p. 253

Paul Fuller (Coudert Brothers, attorneys), opposed.

The defendant, appearing in response to an order for his examination, at the instance of the plaintiff, before trial, objects to being sworn for the reasons: 1. That the affidavit upon which the order was made is not the affidavit of the plaintiff, but of his attorney. 3. That the action is for libel, and that a party should not be examined for the purpose of compelling him to prove against himself the publication of a libel. 3. That a bill of discovery would not, under the former practice, have been sustained for such a purpose.

No provision of the Code relating to depositions requires the affidavit upon which an order for the examination of a party to an action, at the instance of the adverse party, before trial, to be sworn to by such adverse party personally. If the affidavit sets forth the requisite facts, and is presented to a judge of the court in which the action is pending, he must grant the order, whether the affidavit be made by the applicant, his attorney, or a third party (Demar v. Van Zandt, 2 Johns. Cas. 69 ). I have held, in Ludewig v. Pariser,^[1] that the examination of a party to an action before trial, at the instance of an adverse party, under sections 870, et seq. of the Code of Civil Procedure, is a matter of right, and no longer rests in discretion. The objection that questions may be addressed to the witness under examination which, if answered, would tend to criminate him, is prematurely taken ; such an objection is the personal privilege of the witness, and can only be urged when a question having that tendency is addressed to him. In such case his refusal to answer may be justified, but the possibility of being

* Ante, p. 246.

p. 254

asked such a question affords no justification for refusing to be sworn. As the examination is now a matter of right under the existing provisions of law, it is unnecessary to consider whether a bill of discovery could have been resorted to for the same purpose under the former practice. The defendant must be sworn.