
    CORBETT v. DE COMEAU.
    [Reversing 4 Abb. N. C. 252.]
    
      N. T. Superior Court;
    
    
      General Term, May, 1878.
    Examination op Party before Trial. — Requisites of Affidavit to Obtain Order for. — Privileged Communications.— Code of Civil Procedure, §§ 870, 872, 873.
    The court has power to vacate an order for the examination of an adverse party before trial.
    Where, upon the return-day of an order for the examination of the defendant after the service of the summons, but before service of the complaint, the defendant objected to be sworn, and moved that the order be vacated, on the ground that he could not be compelled to criminate himself, — Held, that the burden of proof was on the plaintiff to show that there were material matters as to which he could be examined, and upon his failure to do so, the order might be vacated before the defendant was sworn, as it would be an idle ceremony.
    Where the affidavit upon which such an order was granted, showed that the sole object of the examination was to prove by the oath of the adverse party the publication of a letter, libelous on its face, in a newspaper, and did not show that it was material and necessary to enable the plaintiff to frame his complaint, nor that the publication could be proved by other testimony, if necessary, — Held, that the mere general averment of the affidavit that the testimony of the defendant was material and necessary to the plaintifE in the prosecution of the action, was insufficient.
    Appeal by defendant from order denying Ms motion to vacate an order for Ms examination as an adverse party before trial.
    TMs was an action by John J. Corbett against Louis I)e Comeau for libel. After service of the summons, but before service of the complaint, the plaintiff obtained an order for defendant’s examination. Upon the return-day the defendant objected to being sworn, and moved for the vacation of the order, on the ground, among others, that the action being for libel, he could not be compelled to prove against himself the publication of the alleged libel.
    This motion having been denied (see 4 Abb. New Cas. 252) he appealed.
    
      Coudert Brothers, for appellant.
    
      W. F. Sever anee, for respondent.
   By the Court. — Freedman, J.

The existence of the power to vacate an order made for the examination of a party at the instance of the adverse party, has been so fully shown in Levy v. Loeb, decided at the present term of this court, that no futher discussion upon that point is necessary here. In so far, therefore, as the denial of the motion was based upon a supposed want of power, it rests upon an erroneous view of the law.

[The learned judge here stated the facts.]

The rule that a witness cannot be compelled to disclose any matter which may subject him to a penalty, a forfeiture, or a criminal proceeding, nor to disclose any matter constituting a link in the chain of evidence which may subject him to any of these consequences, has not been repealed by the Code of Civil Procedure, but is expressly retained by section 837. But it is the personal privilege of the witness, and ordinarily it can only be urged when a question having that tendency is addressed to him. As a general rule, therefore, the premature assertion of the privilege affords no justification for refusing to be sworn.

On the other hand, it was incumbent on the plaintiff to demonstrate by facts and circumstances the materiality, necessity, and good faith of the proposed examination at the particular stage of the case at which it was sought to be taken. When, therefore, the defendant claimed his privilege, the plaintiff should at least have shown that there were material matters as to which the defendant could be examined. The burden of proof upon this point rested upon the plaintiff from the start; especially as under the former practice, as was also insisted upon by the defendant, no bill of discovery would have been sustained for the purpose sought to be accomplished by the examination (Leggett v. Postley, 2 Paige, 599; Marsh v. Davison, 9 Id. 580; Bailey v. Dean, 5 Barb. 297; Lansing v. Pine, 4 Paige, 639; Taylor v. Bruen, 2 Barb. Ch. 301; McIntrye v. Mancius, 16 Johns. 592); and no examination was allowed to proceed where it was evident that the witness could not be compelled to answer a single material question under it.

But the affidavit on which the order was granted, showed that the sole object of defendant’s examination was to prove, by the latter’s own oath, the publication of a letter, libelous on its face, in a newspaper, with the design to injure the plaintiff, and no further proof was adduced to overcome defendant’s objection. Moreover, there was no pretense that the examination was material and necessary to enable the plaintiff to frame his complaint, or that the publication could not be proved by other testimony, if such proof should become necessary at a subsequent stage. The mere general averment of the affidavit, “that the testimony of the defendant is material and necessary to plaintiff in the prosecution of this action,” did not meet the requirements of rule 89.

For these defects, and it plainly appearing from the whole case, that the object of the plaintiff was not so much to collect proof in aid of an action which he had, as to find out, by the examination of the defendant, whether he had any against the latter in particular, the motion to vacate should have been granted. To have compelled the defendant to take the oath, and then to reassert his privilege, would in this case have been an idle ceremony.

The order appealed from should be reversed with costs, and defendant’s motion to vacate the order for examination granted.

Speib, J., concurred. 
      
      
        Ante, p. 157.
     