
    STAKE a. ANDRE.
    
      Supreme Court, First District;
    
      Special Term, November, 1859.
    Commission to .take Testimony.—Motion.
    A commission cannot be granted to take the testimony of an adverse party, to be used on the hearing of a motion. The provisions of law, for compelling the testimony of a party, extend only to testimony to be used on the trial.
    The word witness, in a statute passed before parties were allowed to testify, is not to be construed as including parties.
    Motion to vacate an order granting a commission to take the testimony of the plaintiff.
    
      The facts are stated in the opinion.
    
      T. C. T. Buckley and F. S. Stalknecht, for the motion.
    
      Rice & Hill and David Dudley Field, opposed.
   T. R. Strong, J.

The plaintiff, having a judgment against the defendants, has given notice of a motion to set aside a prior judgment against the defendants in favor of another person; and. the court, upon an ex parte application of the plaintiff in the prior judgment, founded upon an affidavit, has granted an order for a commission to take the testimony of the moving party in the motion, to be used on the hearing, under which a commission has been issued. It is now asked that the order and commission be set aside as unauthorized.

The Revised Statutes (2 Rev. Stats., 1st ed., 554, §§ 24, 25) contain provisions for compelling a witness, who refuses to make an affidavit of facts known to him material in a motion or other proceeding in this court for the purpose thereof, to give testimony before a commissioner appointed by the court, to be used on the motion or other proceeding; but I am satisfied they do not warrant the order in question. At the time the provisions became a law, neither party to an action could be examined as a witness, -and there is nothing in the statute manifesting an intention to change the law in that respect.

Besides, parties are usually designated by that term, and the word witness ordinarily imports a person not a party.

If the Legislature had intended to compel a party to an action to be examined, their intention would, doubtless, have been expressed so clearly as to admit of no mistake.

In 1847 a law was passed (laws of 1847, 630), for the examination of parties, in civil suits and proceedings, as witnesses, but the language used clearly shows that the law relates to evidence to be used on the trial or hearing, and not to proofs on interlocutory motions.

The examination was to be at the trial or hearing of the suit or proceeding.

The Code, subsequently passed, provides that no examination of a party shall be had on behalf of the adverse party, except in the manner therein prescribed (§ 389).

All the other provisions on the subject refer only to evidence upon the issues formed in actions. There is not only no pro. vision in the Code, whereby a party to an action can be compelled to testify, on a special motion therein; but such compulsory examination appears to be within the spirit, at least, of the prohibition mentioned. (See Huelin a. Ridner, 6 Ábbotts' Pr. R., 19 ; Keeler a. Dusenberry, 1 Duer, 660.)

And if the Revised Statutes, or the act of 1847, were in conflict with that prohibition to any extent, they would, thus far, be repealed by it. (See Bacon a. Magee, 7 Cow., 515, and note)

I know of no other ground on which the order in question can stand; and if the views stated are correct, it follows that the motion must be granted.

Order accordingly, with ten dollars costs.  