Majority
p. 845Janett B. Herbage, Resp’t, v. The City of Utica, App’lt. (Court of Appeals, Filed April 10, 1888.)
Headnote
Practice—Examination before trial—Extent of examination allowed —Code Civil Procedure, §§ 870, 872, 873.A party litigant may, in the discretion of the judge to whom application is made under the provisions of Code Civ. Pro., §§ 870, 872 and 873, have a general examination of his adversary as a witness in the cause as well before as at the trial. It is not, as of course, to be limited to an affirmative cause of action or to the affirmative defense set forth in favor of the party desiring that examination.
Appeal, from an order of the supreme court, general term, fourth department, affirming an order of the special term of the supreme court of Oneida county, modifying an order previously granted by the special county judge of Oneida county directing the plaintiff to submit to an ex animation before trial pursuant to Code Oiv. Pro., §§ 870, -872 and 873. .
This action is brought by the plaintiff against the defend •
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ant to recover $10,000 damages for injuries alleged to have been received by reason of a defect in the stone steps leading up to the bridge over the Erie canal, on Genesee street, in the city of Utica.
The defense is, first, a general denial, and second, that, the steps where the accident, if any, occurred, are owned by and under the exclusive control, care and custody of the state of New York, and not of the city of Utica.
The special county judge ordered that the plaintiff appear on a day named, to be examined in the above entitled, action before said referee, before trial in pursuance of sections 870, 871, 872, 873, 874 and 875 of the Code of Civil Procedure and the statutes in such cases made and provided.
The special term judge modified • said order as follows : Ordered, that the said order, granted by the said special county judge of Oneida county, and served on the plaintiff herein, for her examination before trial, be modified and limited so as to allow and permit the said defendant only to examine the said plaintiff herein named before the trial of this action, as to the exact location of the place where the plaintiff fell and received her injury, but not as to any other fact or thing. Ten dollars costs of this motion are allowed to abide the event of the action.
“ This order is made on the authority of the case of Adams v. Cavanaugh ( 37 Hun, 232 ), and is based on the idea that it is not a matter of discretion as to whether the order should be vacated so far as it is vacated, but that the plaintiff is entitled, as matter of right, to have it so far vacated, under the authority of the above case,” and wrote the following opinion:
Merwin, J.—The case of Adams v. Cavanagh ( 37 Hun,. 232 ) must control my action, as it is a decision of the general term in this department. Under that case the examination must be confined to facts that tend to establish the applicant’s cause of action or defense; and by defense,_ according-to that case, is not meant a denial, but something set up affirmatively.
There is, in this case, an affirmative defense which mentions the exact location of the place where the plaintiff fell and received her injury. Her deposition on that subject, would be proper under the Adams Case. Beyond that it. would not be allowable. It must, therefore, be confined to that. An order on this basis may be presented -by either party. Costs of motion to abide event.
The general term wrote no opinion.
Myron W. Van Auken, for app’lt; S. J. Barrons, for resp’t.
The cases cited by the respective, counsel1 show that the practice in relation to the 'subject is not uniform throughout the various departments of the supreme*
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court, but we are of the opinion that a party litigant may, in the discretion of the judge to whom application is made, under the provisions of sections 870, 872 and 873 of the Code •of Civil Procedure, have a general examination of his adversary as a witness in the cause, as well before as at the trial, and that it is not, as of course, to be limited to an affirmative •cause of action, or the affirmative defense set forth in favor of the party desiring that examination. The order appealed from was so limited, not according to the discretion of the court, by which it might have been restrained, but because,, as appears by the order, the court was of opinion that it had no power to order otherwise.
The order appealed from should, therefore, be reversed, and the case remitted to the supreme court for further consideration, without costs in this court to either party.
All concur.