McCue v. Tribune Ass'n — 8 N.Y. Sup. Ct. 469

Majority

p. 469

ALEXANDER McCUE, Respondent, v. THE TRIBUNE ASSOCIATION and JOHN DOE, Appellants.

Headnote

Practice—Ex parte examination of witness before referee — right of adverse pai'ty to •object to—Appearance of witness — when waiver ofolyection to regularity of papers.

A party cannot interfere to prevent the procuring of an ex pa/rte affidavit by his adversary. Objection to the contents of the affidavit, or to the mode of procuring it, must be made when the affidavit is sought to be used. The witness having appeared, and having submitted' to the examination without objection. held, that it was afterward too late for him to initiate proceedings to set aside the order, on the ground of the insufficiency of the affidavit on which it was granted.

Appeal from an order, denying a motion to vacate and set aside a prior order, appointing a referee to take the affidavit or deposition of William F. Gr. Shanks, and also directing the said Shanks to appear before said referee and make such affidavit or deposition.

This was an action of libel brought against the defendants, to recover damages for an article published in the New York Tribune.

The plaintiff, being informed that Shanks knew who was the author of the article complained of) with a view to discover the real name of the writer, and to make a motion to amend his papers by substituting such name for John Doe, obtained an order appointing a referee to take the affidavit of Shanks, to be used on the motion to amend, Shanks having previously refused to make an affidavit voluntarily.

The witness appeared before the referee and submitted to the examination, but refused to answer certain questions. Subsequently, the defendant and Shanks moved to vacate the order of reference, which motion was denied, and this appeal was taken.

Cornelius A. Runhle, for the defendant.

A. J. Dittenhoefer, for William F. Gr. Shanks.

The plaintiff cannot compel the discovery of the name of a person, against whom he proposes to bring a suit for libel. (Opdyke v. Marble, 44 Barb., 64 ; 2 Story’s Eq. Jur., § 1494.) The motion is, in effect, a discovery. No fact in controversy between the parties is sought. The plaintiff seeks to find out whom to sue.

p. 470

Tracey, Catlin & Brodhead, for the plaintiff.

Section 401 of the Code is appropriate. The order was ex parte. (Erie Railway v. Champlain, 35 How., 74 ; Erie Railway v. Gould, 14 Abb., N. S., 280; Brooks v. Schultz, 5 Robt., 657.) An ex parte order is not appealable. (Savage v. Relyea, 3 How., 276 ; Lindsay v. Sherman, 5 How., 308 .) The defendant cannot object, until the affidavit is offered. (Brooks v. Schultz, 5 Robt., 659.) The witness has appeared and been examined, and he cannot now appeal. (Erie Railway v. Champlain, 35 How., 74 ; Claflin v. Farmers’ Bank, 25 N. Y., 293 .

The motion to vacate the order, appears to have been made by the Tribune Association, as a defendant, and by the witness Shanks. The Tribune Association had no right to move to vacate the order for an ex parte examination of the plaintiff’s witness. There is no mode by which a party can interfere to prevent the procuring of an ex parte affidavit by his adversary. The witness might voluntarily appear before the referee and make the affidavit, and, if so, he might waive any irregularity or want of power in the proceedings to procure his attendance.

The affidavit is ex parte, and may or may not be used in the case. If there is anything in the contents, or in the mode of procuring the'affidavit, to which the defendant can lawfully object, his objection must be made when the affidavit is sought to be used against him.^[2]

The witness Shanks also moved to vacate the order, and he appeals from the decision of the Special Term. It appeared, on the motion, that Mr. Shanks appeared before the referee, attended by counsel, at the time and place named in the subpoena served upon him, and then and there, without any objection to the validity or regularity of the subpoena, or the order under which it was issued, submitted to examination, which had been closed before any notice of any motion to vacate the order appointing the referee was given. We think it was too late for the witness, after having voluntarily appeared and submitted to examination, to take exception to the proceedings to procure his attendance for that purpose. The only

p. 471

interference with any right of the witness, which was attempted by the order which he moved to vacate, was in that portion of the order which directed him to appear for the purpose of the examination. Any objection to the order, on this account, was waived by his voluntary appearance, without objection. This precise point appears to have been decided in the case of The Erie Railway v. Champlain,^[2] where it was held that, after the witness had appeared before a referee appointed under section 401, and submitted to a partial examination, it was too late to move to vacate the order appointing the referee, on the ground that the affidavit on which the order was made, did not present a case authorizing the granting of the order. This, though a Special Term decision, was, we think, in conformity to the rule in similar cases. There is no point, as to the propriety of any questions put to the witness, before us, and we intend to decide nothing on that subject, only the proposition, that, after a witness has appeared and submitted to an examination, without objection, before a referee appointed for that purpose, it is too late for him to initiate proceedings for the purpose of setting aside the order, on the ground of the insufficiency of the affidavit on which it was granted. The order appealed from is affirmed, with ten dollars costs.

Present — Barnard, P. J., Tarpen and Talcott, JJ.

Order affirmed, with ten dollars costs.

* 35 How., 74 .

Footnotes

* Brooks v. Schultz, 5 Rob., 656 .