El Tazi v. Stein — 36 N.Y. St. Rep. 548

Majority

p. 548

Abdel Wahed El Tazi, Resp’t, v. Abraham Stein, Imp’ld, App’lt.

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

Discovery—Examination before trial.

A proceeding for the examination of a defendant’s books and papers is not authorized under the provisions of the Code for the examination of a party before trial, as the Code and the rules of practice have specially prescribed other proceedings for the attainment of that end.

Appeal from order denying motion to set aside an order forth e examination of the defendant before the trial, and directing the production by him, at the time fixed for the examination, of the defendant’s books of account, and all correspondence between them and Dombie & Levy and Edward Levy relating to the consignment of gums.

J. Hampden Dougherty, for app’lt; Theodore H Silhman, for resp’t. .

It is reasonably clear from the affidavits that the chief object for requiring the examination of the defendant as a witness before the trial is to oblige him to produce the books and correspondence of the defendants. It has been intimated in some-cases that this proceeding may be authorized under the provisions of the Code of Civil Procedure for the examination of a party at-the instance of his adversary before the trial. People v. Dyckman, 24 How., 222 ; McGuffin v. Dinsmore, 4 Abb. N. C., 241 . But as the Code and the rules of practice have specially- prescribed other proceedings for the attainment of that end, these decisions were not made upon that degree of consideration which entitle them to be followed as authority. More especially also for the reason that the general term of this court and of the court of common pleas have decided directly the other way, and in conformity to the prescribed practice. De Bary v. Stanley, 5 Daly, 412 ; Hauseman v. Sterling, 61 Barb., 347 .

So far as the application rests on the fact of the anticipated absence of the defendant when the trial shall be had, it is fully-met by his affidavit stating that he will not be absent, but will be personally present at the trial. In addition to that the affidavits are not so substantial in their statements as to support the order which has been made. The order should be reversed, with ten dollars costs and the disbursements, and the order for the examination should be vacated.

Van Brtjnt, P. J., and Brady, J., concur.