
    COCKEY against HURD.
    
      New York Superior Court;
    
    
      Special Term, May, 1872.
    Examination of Pasty foe Motion.
    The provision of section 401 of the Code of Procedure,—authorizing the court to appoint a referee to take, for purposes of a motion, the affidavit of any person who refuses to make an affidavit,—applies only to persons not parties to the action.
    The case of Hodgkin v. Pacific Railroad Co. (5 Abb. Pr. N. S., 73), approved.*
    * That decision has since been affirmed on appeal. Reported in 3 Daly, 70.
    Order to show cause why an order should not be vacated.
    Elizabeth A. Cockey and others brought this action against Frederick FT. Hurd; and after issue joined, defendant moved for leave to serve an amended and supplemental answer.
    Pending the motion, plaintiff obtained an order under section 401 . of the Code of Procedure (subd. 7), appointing a referee to take the affidavit or deposition of the defendant, to be used in opposition to such motion.
    Thereupon defendant obtained an order requiring plaintiff to show cause why the order of reference should not be vacated.
    
      S. B. Brownell, for plaintiff, in support of the order.
    
      C. C. Bigelow, for defendant, opposed.
   Curtis, J.

This is an application on the part of the defendant to set aside an order of reference granted herein, to take defendant" s affidavit, under section 401 of the Code of Procedure. The Code provides, that where any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may,' by order, appoint a referee to take the affidavit or deposition of such person.

It is urged by the defendant that the words any ■person, in subdivision 7 of section 401, do not embrace the parties, or either of them, to a suit, and that it was not intended to apply to them. Section 389 of the Code is cited as expressly limiting the examination of a party, except as prescribed in chapter 0 of the Code. The plaintiff claims that subdivision 7 of section 401, was added by the legislature in 1863, and has the effect of removing the restriction, if any, in section 389, and that it was the intention of the legislature to remove all barriers in the way of taking the depositions of parties as well as witnesses, thus giving effect to the prevailing public sentiment in favor of removing every restriction. I think if the legislature had intended that the affidavits of parties might be taken in this manner, they would have clearly expressed it, and so so far modified the restriction in section 389, that it would not apply. While the right to examine an adverse party in respect to the issues in an action is given, it seems rather to be the intention of the legislature, and very justly, that it should be confined to that, and not extended to motions arising in the progress of a cause. As a matter of public policy, it might be a serious question how far a party should be subjected to be examined upon every motion that might be made in a cause, for the purpose of procuring his deposition or affidavit.

The views expressed by the learned judge in Hodgkins v. Pacific Railroad Co. (5 Abb. Pr. N. S., 73), appear to present the true interpretation of this section, and in accordance with the decision in that case, the motion of the defendant herein, to vacate the order of reference granted to take the defendant’s affidavit, should be granted, but without costs to either party.

Order accordingly  