Fiske v. Smith — 41 N.Y.S. 176

Majority

p. 176

(9 App. Div. 208.)

FISKE et al. v. SMITH et al.

(Supreme Court, Appellate Division, Second Department.

October 13, 1896.)

Headnote

1. Examination op Party before Trial—Prevention of Perjury.

An allegation by affiant that he is convinced that perjury will be committed by defendants at the trial of the case is not sufficient to sustain an

, order for the examination of defendants before trial.

'2. Same—Review by Appellate Division.

The appellate division of the supreme court succeeded to all the powers of the general term (Const. 1895, art. 6, § 2), and therefore has jurisdiction to review orders for the examinations of parties before trial.

Appeal from special term, Kings county.

Action by George M. Fiske and William Homes against Frank E. Smith and Flora Sawyer. From an order denying a motion to vacate an order for the examination of the defendants before trial, defendants appeal. Reversed.

Argued before BROWN, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

J. Baldwin Hands, for appellant Smith.

Thomas O’Callaghan, Jr., for appellant Sawyer.

Robert D. Benedict, for respondents.

The order for the examination of the defendants before trial cannot be sustained. The facts necessary to be shown upon such an application have been so frequently and so fully considered by the courts in the numerous reported cases upon the subject that they do not need to be restated here. In •our opinion, it does not appear from the moving papers that the desired examination is either material or necessary. The affidavit upon which the order was granted is made by one William B. Gilmore, who describes himself as the agent of the plaintiffs for the purpose of making it, and who swears, among other things, that, from the nature of certain testimony given by the defendants in a •chancery suit in New Jersey, “he is convinced that they would, if placed on the stand at the trial of this cause, give false evidence, which deponent could not then rebut; but, if examined before trial, they will not dare to testify falsely to any facts of which the plaintiffs herein could prove the falsity, and on which examination the plaintiffs could procure the indictment of said Smith and Flora Sawyer.” In other words, the plaintiffs want to examine the defendants before trial, in order to prevent them from committing perjury upon the trial. This reason is not recognized as sufficient ■either by the Code or by the courts. It would be a reflection on the character of the parties to an action which the court has no right to make to force them to submit to an examination upon the • assumption or assertion that such a course is necessary in order to guard against subsequent false swearing on their part, especially "when there is nothing to sustain the assumption or assertion except the bald statement of an agent of the adverse litigants that he is “convinced” of the danger of perjury. Nowhere else in the affida

p. 177

vit do we find any special conditions set out wMcli indicate that the examination of these defendants should take place before rather than upon the trial. See Abbott-Downing Co. v. Faber, 87 Hun, 300 , 34 N. Y. Supp. 433 . The proposition that the determination of the judge who grants the order will not be reviewed on appeal is not correct so far as it relates to the appellate division. This court possesses all the powers which belonged to the general term at the time the present constitution took effect. Const. art. 6, § 2. The authority of the general term to review orders of this character was upheld in the case of Jenkins v. Putnam, 106 N. Y. 272 , 12 N. E. 613 .

The order appealed from must be reversed, and the motion to vacate the order of examination granted, with $10 costs and disbursements. All concur.

Cases cited

Jenkins v. Putnam 106 N. Y. 272 N.Y. 1887-06-28 p. 177