
    DAUCHY against MILLER.
    
      Supreme Court, Third Department, Third District;
    
    
      Special Term,
    
    
      September, 1874.
    Deposition before Referee. — Discretion of Court.—Affidavit. —Motions and Orders.
    Subdivision 7, of section 401, of the Code of Procedure,—which provides for compelling a person who has refused to make his deposition at the instance of a party intending to make a motion thereon in a court of record, to make such deposition before a referee,—was not intended to authorize an examination of a witness upon the general merits of a controversy.
    The granting of an order for the purpose is in the discretion of the court.
    The affidavit, on which such order is asked for, should specify the subject on which the witness was requested to depose, and the facts claimed to be within the knowledge of such witness, and bearing " upon the merits of the motion desired to be made.
    Where such affidavit did not state the facts supposed to be within the knowledge of the witness whom it was sought to make testify, nor even that the party’s opinion that his testimony was necessary, was based on the advice of counsel, the order compelling such testimony was vacated.
    On a motion to vacate such an order, objection that the moving papers do not point out particularly the defect complained of, can not prevail, where the order is assailed for insufficiency of the affidavit on which it is founded, since this is matter of substance going to the sufficiency of the whole proceeding.
    
      Sarah F. Dauchy procured an order of arrest against Thomas S. Miller, in an action against him in this court.
    An order was subsequently granted, appointing a referee to take the deposition of Nathan Dauchy, upon the following affidavit.
    “supreme ooubt.
    “Sabah F. Dauchy “ v. “Thomas S. Miller.
    “Thomas S. Miller, being duly sworn, says that he is the above-named defendant; that he intends to make a motion to set aside the order of arrest, in this matter, or to increase the amount named in the undertaking given upon procuring the said order; that in order for said deponent to make said motion, it will be necessary to have the affidavit of Nathan Dauchy for that purpose ; that to-day deponent applied to said Dauchy to make such affidavit, and said Dauchy refused to do so, and has not yet done so.
    “T. S. Miller.
    “Sworn before me, Sept. 7th, 1874,
    “Wm. H. Hollister, Jr., Notary Public.”
    A motion is now made to vacate said order for taking said Dauchy’s deposition, on the ground of irregularity, and for insufficiency of the affidavit on which the order was founded.
    
      James Lansing, for the plaintiff, in support of the motion.
    
      JES. F. Bullard, for defendant, opposed.
   Inhalls, J.

This proceeding is instituted under subd. 7 of section 401 of the Code, which provides: “When any party intends to make or oppose amotion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed, and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue.” ' The Code does not prescribe the form of the affidavit, and only in general terms indicates what it must contain to justify the granting of the order. It is obvious this provision of the Code was not intended to authorize an examination of a witness upon the general merits of a controversy. Ho notice is required to be given to the adverse party, and no cross-examination of the witness is contemplated. It was merely intended to enable a party to secure the affidavit or deposition of a witness upon some subject involved in, and necessary to, a motion in the action. The court is to exercise a discretion in regard to the propriety of granting such an order. The language of the Code is: “Such court may appoint a referee —that is, if the facts presented are such as establish the necessity or propriety of such order. Of this the court, not the party, is to judge.

The affidavit should specify, with reasonable certainty, the subject upon which the witness was requested to depose, and the facts claimed by the party to be within the knowledge of such witness, and bearing upon the merits of the motion desired to be made. This requisite would not only enable the court to determine the propriety of granting such order, but would furnish some guide to the examination. It is apparent that it was not intended to authorize an examination of a witness, by way of experiment, to ascertain what he might state in regard to the controversy, leaving the party to his election whether or not to use the examination upon a motion, or in some manner and for some purpose upon" the trial of the action. The courts should see that the provision in question, which is valuable for the purpose intended, be not perverted so as to become an instrument of injustice and oppression to parties or witnesses. The affidavit in question merely states, upon this subject, that it will be necessary to have the affidavit of Nathan Dauchy for the purpose pf the motion,— not a fact is stated which the defendant supposed to be within the knowledge of said Dauchy,—and it will be observed that the opinion of the defendant, in regard to the necessity of Dauchy’s affidavit to be used upon the motion, does not purport to be based even upon the advice'of counsel.

It would be a safe and convenient practice for a party to prepare the required affidavit and submit it to the witness, and request him to verify the same; and in case of refusal, to make the'proposed affidavit a part of the papers upon which the order is applied for. Óf course such practice is not indispensable; but in this, or some other form, the court should be informed wherein the examination of the witness is material and necessary to the motion intended to be made.

The view, thus taken, I deem in harmony with the adjudications upon this subject (Erie R. R. v. Gould, 14 Abb. Ft. N. S., 279; H. R. R. R. Co. v. Hay, Id., 183; 4 Wait Pr., 588).

The objection to this motion, that the moving papers do not point out particularly the irregularity complained of, can not prevail, for the reason that the order is assailed upon the ground that the affidavit was insufficient to justify the granting- of said order, which is matter of substance, and aimed at the sufficiency of the entire proceeding, and not a technical irregularity. The order must be vacated ; but as the practice in regard to such orders has not been uniform, no costs are allowed, but the defendant is at liberty to renew the application.  