
    MARY E. CHAFFEE, Appellant v. EQUITABLE RESERVE FUND LIFE ASSOCIATION, Respondent.
    
      Examination of party defendant after issue and before trial—when order for, not obnoxious to the objection that its object is to discover the evidence on which defendant relies to sustain his defense although its object is to prove the converse of defendant's affirmative allegations.—Boohs and papers, production of may be required as an incident to the examination.
    
    This action is brought on a certificate or agreement issued by defendant whereby it agreed on satisfactory proof of the death of Edward L. Chaffee to pay to his wife, the plaintiff, if then living, otherwise to the heirs or legal representatives of said Edward, the sum of $10,000 from the death fund (thereafter defined) of the defendant at the time of such death or from moneys that should be realized to such death fund from the next assessment to be made as thereinafter provided; and whereby it was provided, that no claim should be otherwise due and payable except from the reserved fund as thereinafter provided; and whereby it was further provided that only the excess of the reserve fund over $100,000, should be applicable to make up any deficiency that might exist in the death fund at the time a death claim was due for the payment of such claim.
    The complaint alleged, among other things, the death of said Edward, that due proof of such death had been given to defendant, and that the plaintiff was his widow. It contained, however, no allegation either that there was $10,000 or any less amount in the death fund at the time of the death of said Edward, or that $10,000 or any less sum had been realized from the next assessment, or that any subsequent assessment had been made, or that there was $100,000 or any greater sum in the reserved fund. It prayed judgment for $10,000 with interest or for such sum as the court might find and decree to be due upon the policy under its terms and provisions.
    The answer, among other things, affirmatively alleged, that at the time of the death of said Edward, the reserve fund of said association did not amount to the sum of $100,000, that there was no money in the death fund of said association applicable to the payment of the claim, if any, under said certificate, and that in pursuance of the provisions of said certificate and in accordance with the constitution and by-laws of said association an assessment was made, and that the amount realized to the death fund and applicable to the payment of the said certificate, if any sum whatever be due or payable, was the sum of $3,393.90; but denied that any sum whatever was due or payable under said certificate.
    On the application of the plaintiff before trial based on the pleadings and an affidavit of one Fiske, it was ordered, that defendant’s secretary be examined and his deposition taken pursuant to sections 872 and 873 of the Code of Civil Procedure and that he appear at a time and place specified in the order, and submit to an examination concerning the matters relevant to the issues in the action and concerning the matters stated in said affidavit. The order further directed him to produce the books and papers named in said affidavit, on said examination. On defendant’s motion this order was vacated.
    
      Held, that as the evidence sought to be obtained was to prove facts necessary to be established by plaintiff in support of her action, and as that evidence could only be obtained from defendant's officers and its books, and as it was not certain what officer had the necessary information, and as the books and papers might be required to make the examination of the witness effective, the vacation of the order was error.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    
      Decided October 29, 1888.
    Appeal from order of special term vacating an order for the examination of an officer of the defendant as a witness before trial.
    The facts sufficiently appear in the head note and the opinion.
    
      Arnoux, Bitch & Woodford, attorneys, and Wm. H. Arnoux of counsel for appellant, argued:—
    
      I. The state of facts shown in the affidavit of Mr. Fiske was sufficient for a bill of discovery under the old practice. The facts set forth show the materiality of the evidence sought to be obtained;. and that it was necessary affirmative evidence in support of plaintiff’s cause of action. Bailey v. Dean, 5 Barb. 297. The cause shown to vacate such an order must distinctly appear .in the affidavit, and must be of sufficient weight to warrant the judge to vacate. Levy v. Loeb, 5 Abb. N. C. 157. In Levy v. Loeb, 5 Abb. N. C. 157, Freedman, J., and aff’d., 75 N. Y. 609, the order denying the defendant’s motion to vacate the order for the defendant’s examination was reversed, the court holding that the power of the court to vacate an order to examine before trial for cause shown was inherent; and also that it was not shown by the plaintiff that the examination was material and necessary. In tha,t case the defendant proved by affidavit that issue had not been joined, and that one of the defendants had previously been examined. The court said that as issue had not been joined the requirements of the prosecution could not be known. There is no such state of facts in this case.
    II. The order for the examination of the defendant before trial was properly granted. O’Reilly v. Westn. Union, 12 Hun, 124 ; Brisbane v. Brisbane, 20 Hun, 48; Harrold v. N. Y. E. R. R., 21 Hun, 271; Herbage v. The City of Utica, 14 N. Y. State Reporter, 845.
    III. The order granted in this case should not have been vacated. Glenney v. Hedwell, 64 N. Y. 120; Beach v. Mayor, 14 Hun, 79; Greer v. Allen, 15 Hun, 432; Chapin v. Thompson, 15 How. 53; Sprague v. Butterworth, 22 Hun, 502; Corbett v. De Comeau, 5 Abb. N. C. 169; Schepmoes v. Bousson, 52 How. 408; Hutchinson v. Lawrence, 3 Civ. Pro. Rep. 88; Hynes v. McDermott, 55 How. 262 ; Ludewig v. Pariser, 4 Abb. H. G. 246; McGuffin v. Dinsmore, 4 Abb. N. C. 244, citing Code, § 853; March v. Davidson, 9 Paige, 583; Schepmoes v. Bousson, supra; Crooke v. Corbin, 23 
      Hun, 176. In none of the cases examined, either where it has been held that the examination of an adverse party before trial was a substitute for the bill of discovery, as in Phoenix v. Dupuy, 53 How. 158, and in Schepmoes v. Bousson, 53 How. 401, or where it has been denied, as in Hynes v. McDermott, 55 How. 260, is there any question as to the right of a party to such an examination where it is shown that he has a good cause of action; that his application is made in good faith and not for piscatorial purposes, and when the technical rules governing the remedy have been complied with. Although the absolute right to such an examination, formerly conceded to the parties to the action, has been denied, and the right of the court to vacate an order for such examination, formerly denied, has been held to be inherent in the court, it has been the uniform practice of the courts to order such examination, exacting compliance, both in form and substance, with the provisions of the code under which the examination is sought. Greer v. Allen, 15 Hun, 432; 14 Ib. 79; Chapin v. Thompson, 16 Ib. 54. And to refuse to exercise the power to vacate an order for such examination where, as in this case, the object and spirit of the code would be defeated and substantial injustice done. Glenney Case, 64 N. Y. 120; Harrold v. N. Y. E. R. R., 21 Hun, 268; Brisbane v. Brisbane, 20 Ib. 48.
    IV. The fact that we ask too much is no ground for denying what we are entitled to. In Hutchinson v. Lawrence, 3 Civ. Pro. Rep. 88, it is said “it may be that effort will be made to extend it (the examination) beyond what may appear to be necessary to obtain a knowledge of the facts required to be known to present the plaintiff’s case. But that possibility will not justify a denial of the remedy.”
    
      Me Adam & Me Adam, attorneys, and of counsel, for respondent, argued:—
    I. The order for examination before trial under § 872 of the Code, although absolute on its face, is under the control of the court in its discretion and may be vacated for cause shown. Jenkins v. Putnam, 106 N. Y. 272; Webster v. Stockwell, 3 Abb. N. C. 115; Ludewig v. Pariser, 4 Ib. 246; Cobbett v. DeComeau, 4 Ib. 252; Cobbett v. DeComeau, 5 Ib. 169; Levy v. Loeb, 5 Ib. 157 ; Barker v. Wilder, 10 Week. Dig. 252; affirmed, 21 Hun, 584. In this case the order was properly vacated for the following reasons :
    II. This order seeks to compel the production and inspection of the books of the defendant. That is the prime purpose of the order. Such an order cannot be granted ex parte ; it must be applied for upon petition and order to show cause under § 805 of the Code. Dick v. Phillips, 41 Hun, 604; Levy v. N. Y. C. R. R. Co., 53 Super. Ct. 267. In the last case, the question arose under § 872, subd. 7 of the Code, as in this case, and it was there held that the order should be vacated on the ground above stated.
    III. Such an order should not be granted in a common law action for the recovery of money only. The party has an adequate remedy by subpoena duces tecum on the trial. Dickie v. Austin, 4 Civ. Pro. R. 123; Cutter v. Pool, 3 Abb. N. C. 130; Black v. Curry, 1 Civ. Pro. R. 193; Kanter v. Brophy, 1 Ib. 83; Sanger v. Seymour, 4 N. Y. State Rep. 451.
    IV. But the affidavit of Haley Fiske, together with the pleadings, shows the object of the order to be merely a fishing excursion to ascertain how the defendant proposes to establish its defense. He says: “ He desires to examine the defendant’s secretary, the said Bogert, as to all and every of the material allegations in the answer, and deems it necessarv to do so in advance for the purpose of obtaining admissions and proofs of the facts in issue.” The answer contains the defense of the defendant, which is to be proved by him and not by the plaintiff. A plaintiff cannot compel his adversary to appear and be examined before trial, when the object of the examination is to oblige him to disclose the evidence by which he intends to establish his defense, or to obtain admissions from him. Such an examination is only allowed as to the facts tending to establish the applicant’s cause of action and then only when the evidence cannot be obtained in any other way. Code, § 871; Adams v. Cavanagh, 37 Hun, 232; Stichter v. Tillinghast, 11 Civ. Pro. R. 413 ; Wallace v. Wallace, 19 Week. Dig. 495; McMahon v. Brooklyn R. R. Co., 20 Week. Dig. 404. The plaintiff can prove all the allegations of her complaint by testimony and papers in her own possession. The affidavit of Haley Fiske shows that the proposed examination relates solely to the allegations of the answer. It is the proper business of the defendant to prove the allegations of the answer and not of the plaintiff. Yet plaintiff now seeks to find out in advance how the defendant will prove them by an order which would permit her attorneys to examine all the transactions of the company from its organization, and to rummage through all its books. Such an inquisition will not be sanctioned by the court, and the order for examination before trial was properly vacated.
   Per Curiam.

This action is brought on a certificate or agreement issued by the defendant whereby it agreed to pay to the plaintiff within ninety days after the receipt of proof of death of Edward L. Chaffee, the sum of $10,000 from the death fund (thereafter defined), of the association at the time of such death or from moneys that should be realized to said death fund from the next assessment to be made as thereinafter provided.

The answer alleges, that at the time of the death of the said Edward L. Chaffee, there was no money in the death fund applicable to the payment of the said claim, and that an assessment was made as provided in the certificate which realized the sum of $3,393.90.

It is evident that before the plaintiff can recover she must prove that the death fund amounted to $10,000, or if it did not amount to that sum what amount an assessment would realize, and that such evidence must be obtained from the officers and books of the defendant.

From the nature of the case the plaintiff has not the information necessary to enable her to testify in relation to those facts, and it does not appear that there is any source from which the testimony could be obtained, except from an examination of the officers and books of the defendant, and as before stated the testimony is material to sustain plaintiff’s cause of action.

Nor should the plaintiff be compelled to wait until the trial and then depend upon a subpoena duces tecum. It is not certain that the secretary is the officer who has the necessary information and the plaintiff should not be exposed to the risk of the failure of the officer subpoenaed to be able to testify. We do not wish to be understood as deciding that plaintiff is to have under this order a discovery or inspection of the books of the defendant. The books may be required to be produced as an incident to the examination of the witnesses, Levey v. N. Y. Central R. R. Co., 53 Super. Ct. Rep. 267, so as to make his examination effective. Plaintiff is entitled to such an examination but not to a discovery or inspection of books and papers.

We think the order vacating the order for the examination should be reversed with costs and disbursements and the motion to vacate denied with ten dollars cost.  