
    JOHN W. HESSE, Plaintiff and Appellant, v. SAMUEL ELLIS BRIGGS, Defendant and Respondent.
    Before Curtis, Ch. J., and Freedman, J.
    
      Decided December 1, 1879.
    I. Party resident of the state, examination of before trial.
    1. Where it must be had.
    
    
      (a) In the county where the party either resides or has an office for the regular transaction of business in person.
    
      (b) Superior cohrt, effect of action being pending there.
    1. Notwithstanding this, a party resident of the State, but who neither resides nor'has an office, <fcc., in the county of New York, cannot be compelled to submit to an examination in that county.
    
    1. This although lie is party plaintiff.
    H. Costs of appe \l from order.
    1. When not awarded.
    
    
      (a) Where the point involved is one of practice, and is a new question presented for the first time.
    Appeal by plaintiff from an order denying a motion to vacate an order for the examination of the plaintiff before trial, and directing the plaintiff to appear and be examined, and that his deposition be taken pursuant to section 873 of the Code of Civil Procedure, before one of the justices of this court at chambers in the city of New York.
    
      M. R. Lawrence, attorney, and of counsel, for appellant, urged:
    I. The right of a party to examine an adverse party as a witness before trial, and the power of the court to order such examination, depend entirely upon the statute (Code Civ. Pro. § 870), aside from which no such right exists, and' the court has no power to make such an order
    
      II. Under the former Code of Procedure, an examination of an adverse party could be had either in the county in which the party whose examination was desired resided, or in any county in which he was served with a summons for his attendance (Code of Pro. § 391). The rule thus created by section 391 of the Code of Procedure was productive of many hardships, which came frequently to the notice of the courts, and in the case of Todd v. Hambden (41 How. Pr. 230), the court suggested an amendment which would obviate the difficulties thus created. The existing law upon the subject of the place where the examination may be had, is section 886 o,f the Code of Civil Procedure, which was designedly so framed as to repeal the provision permitting the examination in any county in which the party might be served with the process. That such was the object of the revisers is clear from the note of Mr. Throop to section 886 of the Code of Civil Procedure (See Throop’s Code of 1877). The object in question has been clearly accomplished by the enactment of the section last named, which is in clear and definite language, of unmistakable meaning. Section 886 of the existing Code of Civil Procedure is clearly designed to prevent residents of the State from being obliged to attend for examination in any county other than that in which they reside or have a regular office for the transaction of business, in person (See Code Civ. Pro. § 886). In a recent case, determined by the general term of the supreme court in this department, it was held that a party cannot be compelled to attend for examination as a witness before the trial, except in the county where he resides, or has a place of business (Marsh v. Woolsey, 6 Weekly Dig. 532). The power, both of the supreme court and of this court, with reference to this subject, is derived from and limited by the same sections of the same statute (Code Civ. Pro. §§ 870-886). There is no possible distinction between the powers of the two courts on this subject. If the legislature has made it impossible to examine before trial, in an action in this court, an adverse party, who neither resides nor carries on business in the city of Hew York, the court cannot supply the omission. There being no power conferred upon the court by any statute whereby it can compel the attendance of a non-resident party, in such a case as the present, and the fact of the plaintiff’s non-residence appearing from the papers on which the order for examination was applied for, the order should not have been granted, and, when granted, should have been set aside upon the plaintiff’s motion. The facts appearing from the papers originally presented, the order was without jurisdiction, and consequently void.
    
      George C. Lay, attorney, and of counsel, for respondent, urged:
    I. Section 886 of the new Code was not intended to apply and does not apply to the superior city courts. This section was enacted to correct an abuse and prevent annoyance. The appellant would so construe it as to deny the respondent an important right granted by the old Code and re-affirmed by the Code of Civil Procedure, viz. : The right to examine an adverse party before trial. The effect of a strict and technical construction of this section is to deprive the superior court of jurisdiction to examine a plaintiff before trial in the city of Hew York, because he lives in an adjoining county, and has no place of business in Hew York, although he has chosen this jurisdiction in which to bring his action, and comes to Hew York daily, (a) It is a rule in the construction of statutes that wherever the statute works a change in the existing law, it is necessary to take into account the old law, the evil which the statute makers intended to rectify, and the remedy they have provided. The effect of this rule is to confine the remedy to the evil or mischief to be rectified, even though the words on their face have a broader meaning. Under the old Code a party residing in a far distant county might be compelled to attend before a judge in New York because served with a summons for hjs attendance, while temporarily in this city. This power was often abused by litigators and was productive of many hardships. The section in question was passed to correct these abuses, ("d) Section 886 by its terms allows the examination of a non-resident of the State in any county of the State where he may be served with a subpoena. It appears from this provision that the legislature did not intend to deprive a party of his right to examine his adversary in any case, but only to avoid making the examination an oppressive and annoying proceeding.
    II. The section of the statute under which the appellant claims immunity from examination, is a remedial statute, and should be liberally construed. By a strict construction of the language used, the intention of the legislature is violated, while by confining the operation of the rule to cases which it was clearly enacted to meet, no violence is done to reason or justice. There is abundant authority for disregarding the plain words of a statute when they manifestly conflict with the intention of the law makers, otherwise clearly expressed. There are several maxims which seem to apply—“ boni judicis est ampliare jurisdietionem,” applied in Broom’s Maxims to construction of statutes (Broom Leg. Max. 82). “Reason is the soul of the law. Oessante ratione legis, cessat ipsa lex.” The intention of the legislature is to be gathered from other acts in pari materia, as well as from the act itself. Sometimes it is to be collected from the cause or necessity of the statute, and sometimes from other circumstances; and wherever it can be discovered, it ought to be followed with reason and discretion in the construction, although such construction seems contrary to the letter of the statute. A thing within the intention is within the statute, though not within the letter, and a thing within the letter is not within the statute unless within the intention; such construction ought to be put upon it as will not suffer it to be eluded (Bac. Abridg. tit. “Statutes,” 1, 5, 10; People v. Utica Ins. Co., 15 Johns. 358; Jackson v. Collins, 3 Cow. 89).
    III. According to. the practice of the superior court governing non-residents of the county, the plaintiff stands in the same position as a non-resident of the State. As a non-resident of the county he has been compelled to file security for costs in this case. So far as this court is concerned, the plaintiff stands on the same footing as a non-resident of the State. The language of section 886 is simply, “ Where he is not a resident he shall not be required to attend in any other county than that wherein he is served with a subpoena, &c.” The plaintiff, a non-resident, voluntarily submits himself to this jurisdiction, and comes to New York daily, and was served with the order in this city. He would construe the statute to defy the order of the court, and claims entire immunity from examination in a case where justice demands it.
   By the Court.—Curtis, Ch. J.

It appears that at the time of the commencement of the action, and at all times thereafter, the plaintiff did not reside in the city and county of New York, but in the county of Kings, nor did he have any place for the transaction of business in the city and county of New York.

The right to examine the plaintiff as a witness before trial, and the power of the court to order such examination, depends entirely upon the provisions of sections 870 to 876, inclusive, of the Code of Civil Procedure. The latter section is as follows: i( Where a person to be examined as prescribed in this article is a resident of the State, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person. Where he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs.”

The words “where he is not a resident,” in this latter section, when read in connection with the preceding sentence, show that it is a non-resident of the State that is referred to, and not a non-resident of the county. This reading is alone consistent with the language of the preceding sentence, and with the two restrictions therein contained. It, is, besides, but reasonable to .consider 'that the legislature, if it had intended to place the superior city courts upon a different basis from the supreme court in relation to this remedy, would have distinctly expressed it.

The question arises for the first time before the court, and hardly calls for the awarding of costs to either party.

The order appealed from should be reversed, without costs, and the order for plaintiff’s examination vacated, without costs.

Freedman, J., concurred.  