Majority
p. 406N. Y. MARINE COURT. William L. Montague agt, John P. Worstell. Special Term, May, 1878.
Headnote
Examination of parties—pwpetnwMon of testimony.There is no way under the Code of Civil Procedure, or in the law of this state, now to perpetuate the testimony of a party defendant at Ms own instance.
Under the Code of Civil Procedure any person can he examined conditionally before trial at the instance of either party to a suit. But a pamty to am, action cannot he thus examined, excepting at the instance . of the adverse party.
The defendant being mortally ill and the action being at issue, motion was made to perpetuate the testimony of the defendant.
F. F. Ma/rimry, Jr., for plaintiff.
M. M. Budlong, for defendant.
The materiality of the evidence is shown, and all of the statutory requirements have been complied with (3 R. S. [6th ed.], p. 652), and I would willingly make the order were it not for the fact that the statutory provision in question has been expressly repealed by the act of 1877 (chap. 417, sec. 3), and the ease is not embraced in any provision of the new Code of Civil Procedure (sec. 872, subd. 5) because the person to be examined is a party to the action.
p. 407
The application will therefore be denied with costs. Under the new Code any person can be examined conditionally before trial at the instance of either party to a suit. A party to an action cannot, however, be thus examined, excepting at the instance of the adverse party. So that, in case there is danger of a party dying before trial, there is no means of perpetuating his testimony, no matter how important such testimony may be.