
    FAIRBANKS a. TREGENT.
    
      Supreme Court, First District; General Term,
    
    
      February, 1859.
    Examination of Panties.—Commission.
    A non-resident party is not entitled to the issue of a commission to take his testimony unless the adverse party has given notice of an intention to offer himself as a witness.
    
    The first clause of section 399 of the Code, should be construed to apply only to the case of examination at the trial.
    Appeal from an order granting a commission to examine the defendant on his own behalf.
    The decision of the special term allowing the commission is reported 1 Ante, 21.
    
      
       See to the same effect, Hull a. Wheeler, 7 Ante, 411.
    
   By the Court.—Roosevelt, J.

The Code provides that a party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness. As non-resident witnesses generally may have their testimony taken by commission or written interrogatories and cross-interrogatories, without the necessity of personal attendance in court, it is insisted that, under the language above quoted, the same rule applies to non-resident parties. It is undoubtedly true, that the clause in which the above provision occurs, contains no limitation as to non-residence, while it does contain certain other specific restrictions, namely: First, that “ the adverse party or person in interest” shall be “ living” (although it is not perceived how a dead body can be an “ adverse party or person”); second, that he shall not be the assignee or legal representative of a deceased person; third, that the party proposing to be examined shall give ten days’ notice of such intended examination. And applying the argument deduced from the maxim of expressio unius exclusio alterius, it would seem to follow that a non-resident party who wishes to be examined, need not for that purpose attend in person.

It is said, however, that a subsequent clause of the section in question overthrows this inference. That clause, on a careful perusal, will be found to be confined to the case of a party receiving a notice that his adversary intends to be examined, and not to apply to the case of a party giving a notice that he himself means to be a witness. It provides that on receiving such notice of his adversary’s intention to be examined—whether viva voce or on commission, seems immaterial—he may, if a nonresident, have his own examination taken by commission. But it is asked, and very pertinently, if it was intended by the first clause that a non-resident might, in any event, be examined on commission, why insert another clause that he might do so in the particular event of his adversary’s being examined ? The provision, in that view of the section, would be entirely superfluous. We are bound, however, to give it some effect, if practicable. The only way of doing so is to regard it as limiting still further the generality of the previous language. And so interpreting it, the result would be—and certainly it is not an objectionable result—that if a party wishes to be a witness in his own behalf, whether he reside within or without the jurisdiction, he shall attend in person, and submit to an examination in the face of the court, unless the opposite party has seen fit, by his own act, to force him to be a witness; in which case, if a nonresident, he need not make a distant journey, but may have his testimony taken on written interrogatories and cross-interrogatories, to be settled and transmitted to him.

This interpretation gives effect to all parts of the section, and merely requires the insertion in the first clause of the words “on the trial,” which, it is obvious, were in the mind of the Legislature, and are necessarily to be implied, in order to make the whole provision harmonious with itself, and reasonable in its operation. The first clause of the section, in that view, would read as follows: “ A party to an action or proceeding may be examined (on the trial) as a witness in his own behalf, the same as any other witness.”

Order appealed from reversed, without costs.  