
    McGUFFIN v. DINSMORE.
    N. Y. Superior Court; Special Term,
    March, 1878.
    Evidence.—Examination of Party, before Trial.—Joint Stock Companies or Associations.—Parties.—Discovery and Inspection of Books, Etc.—Code of Civ.
    Pro. §§ 870, et seq.
    
    A person sued according to L. 1849, c. 258, is the only “party” defendant, although he is sued in his representative capacity as president of an association consisting of numerous individuals.
    As such party he may be examined and his deposition taken at the instance of an adverse party at any time before trial, under §§ 870, et seq. of Code of Civil Procedure.
    His examination under those sections is a matter of right upon which the plaintiff may insist, irrespective of restrictions and conditions existing before the Code of Civil Procedure was enacted.
    That answers to certain questions on such an examination may tend to criminate him, is no justification for refusing to be sworn.
    A party to an action ordered to be examined before trial at the instance of an adverse party, may be required, either by the order of the court or judge, to produce, upon such examination, any book or paper in his possession, or under his control, containing evidence pertinent or material.
    But such production does not entitle the adverse party to a discovery of their contents, nor to an inspection or examination of them, nor to a conducting of the examination with respect to them, otherwise than as at the trial.
    The examination of parties before trial, and the discovery or inspection of books, &c., are two entirely different and distinct proceedings, and may be pursued either concurrently or at different stages of the litigation.
    The officers of an association, not a corporation, sued under L. 1849, c. 258, in the name of its president, except the latter, can only be examined as witnesses in the same manner as if they sustained no official relation to it.
    Motion for the examination of defendant before trial.
    This action was brought by John M. McGruffin against William B. Dinsmore, president of the Adams Express Company, to recover $20,000 damages for false imprisonment and maiicious prosecution, and special damages by reason of the alleged publication in certain New York newspapers, by the defendant’s company, of the arrest.
    The complaint alleged the arrest, &c., to have been made by David B. Barnum, the cashier of the company, one Pinkerton, and other officers and agents of the company, and, upon information and belief, that such acts of such agents and officers were in this respect ratified and approved by the company, and were within the sphere and scope of their authority.
    The answer denied that such acts were within the sphere and authority of such cashier or other officers and were ratified or approved by the company, or that such publication was made with the knowledge or consent, or by the direction of the company, and that whatever acts the cashier and others performed in the premises were performed without malice and with probable cause.
    The plaintiff obtained an order to show cause why William B. Dinsmore, the president, Edward S. Sanford, the vice-president, and Isaiah C. Babcock, the treasurer of the Adams Express Company, should not be examined as adverse parties before trial, and why said Dinsmore, as president, should not bring with him and produce at such examination the books of the company showing its organization,- the minute books touching the duties and authority of the employment of its various officers, and all books and papers, &c., showing the knowledge of the association, or of its governing officers, and their action in ratifying or approving the acts in the complaint set forth.
    Plaintiff’s counsel claimed that the officers, except the president, although not parties of record, were really parties to the action.
    Defendant’s counsel claimed the contrary, and also that they probably could not answer some of the questions asked without criminating themselves, or rendering themselves liable to prosecution.
    
      Francis C. Barlow (Barlow & Olney, attorneys), for the motion.
    
      Charles M. Da Costa (Blatchford, Seward, Griswold & Da Costa, attorneys), opposed.
    I. There is no allegation in the moving papers that the three parties named áre the three managers of the company.
    II. The Adams Express Company not being a corporation, but a joint stock association, and as such suable, and having in this case actually been sued in the name of its president, he alone is “the party” to the action within the meaning of the Code (Code of Civ. Pro. §§ 870, 872, snbd. 4, 839; Code of Pro. 390; Goodyear v. Phoenix Rubber Co., 48 Barb. 522; Apperson v. Mutual Benefit Life Ins. Co., 38 N. J. L. 272 ; Woods v. De Figaniere, 1 Robt. 605; Id. 660; Id. 685).
    III. The court should not order Mr. Dinsmore to produce the books of the company on his examination before trial (Smith v. MacDonald, 1 Abb. N. Cas. 350; Hauseman v. Sterling, 61 Barb. 347; De Bary v. Stanley, 5 Daly, 412 ; La Farge v. La Farge Fire Ins. Co., 6 Duer, 680 ; Code of Civ. Pro. § 868; Central Crosstown R. R. Co. v. Twenty-third St. R. R. Co., 4 Weekly Dig. 324).
    IV. This examination should not be allowed, because: 1. It is an attempt to fish in defendant’s camp for evidence to prove a ratification of its agent’s acts by the company (Schepmoes v. Bousson, 1 Abb. N. Cas. 485 ; Phoenix v. Dupuy, 2 Id. 146, 153). 2. Defendants will probably be asked questions which they cannot answer without criminating themselves (Glenney v. Stedwell, 64 N. Y. 120; 2 Story Eq. Jur. § 1494 and cases cited; Wigram on Discovery, marg. pp. 61, 62, 63, 150; Bailey v. Dean, 5 Barb. 297, 303; Opdyke v. Marble, 44 Id. 64; 1 Kent Com. [7th ed.] 638; 3 Blackstone Com. 127, 138; 4 Id. 216; 3 R. S. [6th ed.] p. 970, § 8).
   Sanford, J.

The conclusions at which I have arrived, after a careful examination of the papers submitted, are:

(1.) That William B. Dinsmore is the only “party ” defendant in this action, notwithstanding that he is sued in his representative capacity as president of an association consisting of numerous individuals (Woods v. De Figaniere, 1 Robt. 607).

(2.) That, as such party, he maybe examined, and his deposition may be taken at the instance of the plaintiff, an adverse party, at any time before the trial, as prescribed in article first, of title III, of chapter IX,' of the Code of Civil Procedure, sections 870, et seq.

(3.) That under the provisions of that article, his examination is a matter of right, upon which the plaintiff may insist, irrespective of the restrictions and conditions under or upon which similar examinations were allowed and conducted before the Code of Civil Procedure was enacted.

(4.) That his answers to certain questions, which may properly be addressed to him, may tend to criminate him, is no justification for refusing to be sworn. When questions of such a character are addressed to him, he may or may not avail himself of the personal privilege, wMch the law, in such case, accords to him.

(5.) That a party, whose examination before trial, at the instance of an adverse party, is ordered, may be required to produce, upon such examination, any book or paper in his possession, or under his control, containing evidence pertinent or material, and such requirement may be made either by the order of a court or judge (Code, § 853), or by á subpoena duces tecum (People v. Dyckman, 24 How. Pr. 222, 225; Smith v. MacDonald, 1 Abb. New Cas. 350). The production of books and papers, either under order or subpoena does not entitle the adverse party to a “ discovery ” of their contents, nor can he inspect or examine them, or conduct the examination of the party whose deposition is to be taken, with respect to them, otherwise than in accordance with the established rules and practice applicable to similar examinations of a party or witness at the trial. If a discovery or inspection be desired, it may be compelled in a proper case by a different proceeding, specially directed to that end.

I am of opinion that much of the confusion and conflict of decision in regard to discovery and the examination of parties before trial has resulted from the failure to discriminate properly between these two proceedings, which are entirely different and distinct, and both of which may be pursued in the same action, either concurrently or at different stages of the litigation (Smith v. MacDonald, supra).

(6.) I am of opinion that neither the Adams Express Company by its officers, nor its individual members, other than such one or more of them as are or may be made parties to the record, can be examined, as parties before trial, under section 870. The plaintiff was not obliged to avail himself of the privilege accorded to him by the statute of 1849 (L. 1849, ch. 258), of suing the association in the name of its president. He might have proceeded at his option, in the first instance, against the persons constituting such association, by making them parties to the record, in which case each and all of them would have been liable to examination. I do not think they can be considered “ parties” in such sense as to give to the court jurisdiction over them personally, for the purpose of compelling their attendance to be examined as such. The association is not a corporation and cannot be examined in this suit as a party by its officers, or otherwise than through the particular individual who, by virtue of the statute and for the purposes of the action represents it, as the party of record. Its officers, other than such individual, can only be examined as witnesses in the same manner as if they sustained no official relation to it.

These views dispose substantially of all the questions presented by the motion.

The plaintiff is entitled to an order for the examination of the defendant William B. Din sm ore, and the production by him of the books and papers specified in the moving affidavit, may be required in and by the order directing him to appear and be examined.

As respects the other individuals whose examination is sought to be had, the motion must be denied.

No costs of the motion should be allowed to either party.  