Norton v. Abbott — 28 How. Pr. 388

Majority

p. 388

SUPREME COURT.

Norton agt. Abbott.

Headnote

In all cases where a party desires to examine his adversary as a witness nnder section 391 of the Code, the correct practice is to propose an affidavit, setting forth that the cause is at issue, and that the party desires to examine his adversary as to matters material to the issue, and upon such an affidavit procure an order for his examination. A mere notice served upon the party by the adverse party to attend and be examined as a witness, or an ordinary subpcena not sufficient.

New York General Term,

February, 1865.

Before Ingraham, P. J., Sutherland and Clerke, Justices.

This was an appeal from an order made at special term in February, 1864, discharging the defendant from attendance as a witness. The plaintiff had commenced a suit by the service of á summons and complaint. The defendant had answered, and after issue joined, the plaintiff, with a view of examining his adversary as a witness under section 391 of the Code of Procedure, served a notice on the defendant, in the words following :

“ To defendant: Take notice that you will be examined as a witness in this action, before the Hon. G-eobge G-. Babnabd, one of the justices of this court, on the 18th day of February, 1864, at 10 o'clock in the forenoon, in the chambers of the justices of the said court, in the City Hall, in the city of New York, and that such examination will be taken by virtue of chapter six of the Code of Procedure. Dated New York, February 11, 1864.

p. 389

“Yours, &C.,

“ Buckham, Yah Cott & Bangs,

“ Plaintiff’s Attorneys.”

On the return day of the notice, the defendant appeared and moved that the same be set aside, and that the defendant be discharged from any further attendance upon the same. Judge Barnard granted the motion. An appeal was taken to the general term.

Buckham, Van Cott & Bangs, for the plaintiff,

cited the case of Cook agt. Bidwell (17 Abb).

Amos G. Hull, for the defendant,

contended that an affidavit should have been presented to the judge, showing that the cause was at issue, and stating the material points in which the plaintiff sought to examine the defendant, and that upon such affidavit an order should be granted directing the defendant to appear. He cited Green agt. Wood (6 Abb. p. 277); Bleeker agt. Carroll (2 Abb. p. 82); Cook agt. Bidwell (17 Abb. p. 300).

who wrote the opinion in the case of Cook agt. Bidwell, held that there was nothing decided in that case dispensing with the necessity of an order for the examination of a party under that section, and that in all cases under section 391, the correct practice is to propose an affidavit setting forth that the cause is at issue, and that the party desires to examine his adversary as to matters material to the issue, and upon such an affidavit procure an order for his examination. That a simple notice to attend, or an ordinary subpoena was not sufficient.

Ingraham, P. J., and Gierke, J., concurred.