Majority
p. 127MORGAN against WHITTAKER. Supreme Court, First District, First Department; General Term, March, 1873.
Headnote
Examination of Parties,A party cannot be compelled to submit to examination before issue, under sections 390 and 391 of the Code of Procedure.[1]
Appeal from an order.
Carrie L. Morgan sued Henry Whittaker, Jr., in the supreme court, to recover moneys alleged to have been paid to the defendant by one Moore for the use of, and to be paid over to, the plaintiff. The action was commenced by the service of a summons. Before serving a complaint, the plaintiff applied to the court upon an affidavit, for an order requiring defendant to appear for examination as a witness in the cause under sections 390 and 391 of the Code..
The plaintiff’s affidavit, on which the application was made, stated that Moore, more than ten years previously, entered into an agreement with plaintiff, to pay to her, for a period which had not yet expired, a monthly sum of one hundred dollars per month. That
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defendant had continuously acted as Moore’s attorney and agent in receiving from him and paying over to the plaintiff the monthly allowance. That for about seven years he had withheld a percentage of the monthly sums, claiming it as a commission, such commission increasing, as time passed on, from five per cent, to fifteen per cent.; and that on recent occasions defendant had paid her only fifty dollars a month, stating that Moore was unable to pay more than that. That plaintiff had kept no accounts, and could not state the particular times or amounts of moneys so withheld ; and could not, otherwise than by defendant’s testimony, prove what sums he had received from Moore for plaintiff’s use.
Deponent further swore to merits, on advice of counsel, and stated that the testimony of the defendant as a witness on her behalf, was material and necessary; that without its benefit she could not safely proceed with the trial of the action, and could not properly frame a complaint and state the particulars thereof, with such accuracy and certainty as are proper and requisite in the premises.' That plaintiff,, expected to prove all the foregoing facts by defendant’s examination, and the particulars, dates and amounts, of all moneys so received and paid over or withheld, and that her application was made in good faith, and solely for eliciting proof as aforesaid of matters which she had no other means of proving.
Pursuant to the order issued on this application, defendant appeared, and objected to the examination, on the grounds, among others, “that the affidavit of the plaintiff shows no cause for such examination,” and “that no issue has been joined in the action, and such examination cannot be had before issue joined.” These objections were overruled, and the defendant ordered to submit to an examination.
Defendant appealed.
p. 129Insisted that as a witness can only be examined de bene esse, unless issue has been joined, a party is subject to the same restriction,—citing Bell v. Richmond ; and that even if the change in rule 21 allowed the court the power, it could only be with propriety exercised in case of necessity. I. A party may be examined as a witness (Code of Pro., § 390). II. Such examination may be had at any time, on five days’ notice (Code of Pro., § 391), and no notice to the attorney is required. III. The party may be compelled to attend, as a party to be examined conditionally,—“id est,” by summons (§ 392.) IY. Rule 21 clearly contemplates an examination to enable the party to frame his complaint, &c. This was long subsequent to the decision in 50 Barb., referred to by defendant’s counsel. V. The superior court and common pleas have both given this construction to the Code and rule (Hadley v. Fowler, 12 Abb. Pr. N. S., 244).
Henry Whittaker, for the defendant, appellant,
A. K. Hadley, for the plaintiff, respondent.
We think the case of Bell v. Richmond, 4 Abb. Pr. N. S., 44; S. C., 50 Barb., 571 , decides this appeal.
Order reversed.