Wallace v. Baring — 74 N.Y. St. Rep. 425

Majority

p. 425

Matilda Wallace, Pl'ff, v. Thomas Baring et al., Def'ts.

(Supreme Court, Appellate Division, First Dept.,

Filed March 20, 1896.)

Headnote

1. Deposition—Affidavit.

Section 885 of the Code gives the party who intends to make a motion, a right to obtain the affidavit or deposition of a person, not party, who is possessed of any information which will assist the moving party.

2. Same.

Such section furnishes no authority for the issuing of a subpoena duces tecum requiring the production of books and papers of the company, nor to compel such person to obtain from outside sources information, nor to examine books and papers to qualify himself as an expert accountant for the convenience of a party.

Appeal from an order denying a motion to vacate an order to-set aside subpoenas..

Allan McCulloh, for app’lt; David Gerber, for resp’ts.

We think that the order for the examination of the witness was proper. Section 885 of the Code of Civil Procedure gives the party who intends to make the motion the right to obtain the affidavit or deposition of a person, not a party, who is possessed of any information which will assist the moving party. Such a deposition is simply an affidavit by a not

p. 426

a party, who will not voluntarily testify to facts within his knowledge, which, if necessary for the nse of a party to an action upon a motion, the court can compel him to give. Under such ¡an •order, however, we can find no warrant for the issuing of a subpoena duces tecum, such as was issued by the referee, requiring the production of books and papers of the company. As said 'in Fisk v. Railroad Co., 3 Abb. Prac. (N. S.) 433:

“The examination in section 885 -is not a discovery. If the witness does riot know the facts sought to he proved, then his affidavit is not necessary. He cannot he required either to take .any means to inform himself or to produce anything which contains such information.”

What the section provides for is an 'affidavit or deposition of facts which are within the knowledge of the person sought to he examined; and he is not required to obtain from outside sources information for a party to the action, nor is he compelled, by an examination of the books and papers of a railroad company, to •qualify himself as an expert accountant for the convenience of a party.

The order, so far as it directs the examination to be taken, -should be affirmed; so far as it refuses to set aside the subpoena, it should be reversed; and so much of the motion as sought to have the subpoena ducés tecum set aside should be granted,—without costs.: