Huelin v. Ridner — 6 Abb. Pr. 19

Majority

p. 19

HUELIN a. RIDNER.

Supreme Court, First District ; Special Term,

January, 1858.

Headnote

Examination on Parties upon a Motion.

The Code does not authorize the examination of a party to the action except as a witness at the trial of the issue in the action, or upon commission, his testimony to be read on the trial.

An order for the examination of a party to the action in a motion preliminary or collateral to the issue,—e. g. a motion to vacate an order of arrest,—should not be granted.

Motion for a commission.

The plaintiffs having obtained an order of arrest, an attachment, and an injunction in this action, the defendants moved, upon affidavits, to vacate those orders. Before the motion was brought on, and before issue joined in the action, the plaintiffs moved for a commission to examine two of the defendants as witnesses, their testimony to be used upon the motion to vacate, and for an order requiring the same defendants to appear and be examined, under sections 390 and 391 of the Code.

J. S. McCulloh, for the motion.

Henry Nicoll and James Eschwege, opposed.

I think the examination of a party, either at the trial, or conditionally, or upon commission, or at any time before trial, under sections 390 and 391 of the Code, must be as to matters pertinent, or supposed to be pertinent, to the trial of the action, and that those sections of the Code do not authorize the examination of the adverse party, in a motion to vacate an order of arrest, or any other mere motion preliminary or collateral to the issue.

By section 389 of the Code, no examination of a party shall be allowed or be had on behalf of the adverse party, except in the manner prescribed in the Code. By the subsequent sections he can be so examined as a witness only.

I do not think that one who is examined merely as to matters

p. 20

controverted in a motion to vacate an order of arrest, or whose examination is used only in such motion, can he called as a witness.

It follows that the plaintiff is not entitled either to an order or a commission to examine the defendants Bidner & Wachschlager merely in opposition to the defendants’ motion to vacate the order of arrest.

Motion denied.