
    Bell and others vs. Richmond.
    A party cannot Be examined as a witness, under section 391 of the Code, Before issue joined; unless a case is made justifying an order for the taking of the testimony de bene esse,
    
    The change made in 1863, in the 395th section of the Code does not affect this question.
    APPEAL from an order made at a special term, allowing a party to this action to be examined as a witness before issue was joined.
   By the Court,

Cardozo, J.

The question presented for our consideration is whether a party can be examined as a witness under section 391 of the Code, before issue joined. I think the issue should be joined before the examination is had, unless a case is made, which is not pretended in this instance, justifying an order for the taking the testimony de bene esse. The only reported decision in which a different view has been taken is McVickar v Ketchum, (1 Abb. N. S. 452,) in which the general term of the Superior Court, (Justices Monell and McCunn,) held that the examination might he had at any time after the action was commenced. • But. the question did. not really properly arise there, for the plaintiff .had been obliged by Justice Moncrief to put in a verified complaint before he permitted the examination.

The theory that the change made in 1863, in the 395th section of the Code, by striking out at the end of the first sentence the words in relation to matters pertinent to the issue,” controls or affects this question is fallacious. That portion of ¡the section stood, before the amendment, thus : “ A party examined by an adverse party, as. in this chapter provided, may be examined on his own behalf, in relation to matters pertinént to the issue.” As amended, it reads : “ A . party examined by an adverse party, as in this chapter provided, may he examined on his own behalf, subject to the same rules of examination as other witnesses.” The change does not affect this question, for witnesses .are. always to be examined on matters pertinent to- the issue, and the words “ subject to the'same rules of examination as other witnesses,” cover that and.other matters. To'have used, both phrases would have been somewhat tautological. The idea expressed in the first was included in the latter. The' omission, therefore, furnishes no ground for the argument that the change was to alter the rule which had previously obtained, and which- in fact never was based upon that section at all. Indeed, that section does not, and never did, bear upon the time when the examination should be had, but only enabled "a party who had been examined by his adversary to become a witness for himself. At that time the láw did not permit a party to be a witness for himself, but allowed his adversary to call him if he pleased, and the- sole purpose of the 395 th section was to authorize a person called by the opposite party to be a witness on his own behalf.

[New York General Term,

April 6, 1868.

I think there is nothing in section 391 which prevents our requiring that some issue shall exist to try before the examination, which is to be had in lieu of an examination at the trial shall be allowed. And as no practice has been authoritatively established upon the subject, and as much injustice might be done by permitting a general, unrestricted, roving examination of a party, as it must be if allowed before the issue is framed, and as there is no necessity for any such rule being adopted, I think we may properly hold the true construction of the section to be the one I have given to it.

The order appealed from should be reversed.

Geo. G. Barnard, Ingraham and Cardozo, Justices.]  