
    
      COCKEY against HURD.
    
      New York Superior, Court;
    
    
      General Term, February, 1873.
    Examination of Party for Motion.
    The provision of section 401 of the Code of Procedure, subd. 7,— authorizing the court to appoint a referee to take, for purposes of a motion, the affidavit of any person who refuses to make an affidavit,—applies to parties to the action, as well as to other persons.
    The previous decision in this case (13 Abb. Pr. A. S., 307), overruled; and Hodgkins v. Pacific R. R. Co. (3 Daly, 70, affirming 5 Abb. Pr. A. 8., 73), opposed; and Fisk v. Chicago, Rock Island, &c. R. R. Co. (3 Abb. Pr., A. 8., 430), approved.
    The affidavits to obtain an order for the appointment of a referee for such purpose must set forth facts and circumstances to show the necessity of the application.
    
    It is not enough to allege that, in the applicant’s opinion, it is necessary for him to use the adverse party’s affidavit upon a motion, and that the applicant believes the facts he seeks to Drove are within the knowledge of the adverse party.
    . Appeal from an order.
    After issue joined in this action, plaintiff obtained an order under section 491 of the Code of Procedure, subd. 7, appointing a referee to take the affidavit or deposition of the defendant to be used in opposition to a motion by defendant for leave to serve an amended or supplemental answer. The substance of the affidavits upon which the application was made are stated in the opinion of Barbour, Ch. J.
    On an order to show cause, the defendant had the order vacated on the ground that the statute does not apply to parties, but only to third persons whose testimony may be sought. Reported in 12 Abb. Pr. A. 8., 307.
    The plaintiffs appealed to the general term.
    
      S. B. Brownell and John McDonald, for plaintiffs, appellants.
    
      Charles C. Bigelow, for defendant, respondent.
    
      
       Compare next case and Winston v. English, p. 119 of this vol.
    
   By the Court.—Freedman, J.

The sole question argued on this appeal was as to the power of the court to appoint a referee to take the affidavit or deposition óf a party for the purposes of a motion.

Prior to the Revised Statutes, the courts possessed no power to compel the making of an affidavit to be read bn a non-enumerated motion; and the practice was either to trust to voluntary affidavits or to award a feigned issue (Bacon v. Magee, 7 Cow. 515, and note.)

In the revision of the statutes made in 1830 this defect was pointed out by the revisers, and pursuant to their suggestion a statute was passed, by which it was provided, that whenever there shall be a motion or other proceeding in the supreme court, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony. And such witness could be subpoenaed to attend and testify before such commissioners in the same manner as before referees, and with the like effect; and obedience to such subpoena was enforced in the same manner (2 Rev. Stat. 554, §§ 24, 25).

In 1840 another act was passed, by which it was enacted that whenever there shall be a motion or proceeding pending in the superior court of the- city, of ¡New York, in which it shall be necessary for either party to have the deposition of any witness who may be within the jurisdiction of said court, and who shall have refused to make his deposition voluntarily, the court may' issue a summons requiring said witness to attend before a judge thereof to make his said deposition, and that obedience to such summons may be enforced as in case of a subpoena issued by said court. This statute was also made applicable to the court of common pleas (Laws of 1840, ch. 376, § 3).

By chapter 463 of the Laws of 1847, which is entitled, “An act to authorize parties in civil suits, at their election, to obtain the testimony of the adverse party,” it was further provided, that any party in any civil suit or proceeding, either in law or equity, may require any adverse party to give testimony under oath in the same manner as any other competent witness, either orally upon the trial, or under a commission, or conditionally, or for the purpose of having his testimony perpetuated.

The Code abolished the action to obtain discovery under oath in aid of the prosecution or defense of another action (section 389), and substituted therefor the examination of a party as a witness on behalf of the adverse party ; so that under it a party may examine his adversary as a witness, in the same manner as any other witness, either at the trial, conditionally, or upon commission (section 390), and the examination, instead of being had at the trial, may even be had at any time before trial, at the option of the party claiming it (section 391). The examination, when thus taken before trial, is to be filed in the same manner as the examination of a witness taken de bene esse is required to be filed, and may thereupon be read by either party on the trial (section 393).

The Code, as originally enacted, also provided that no person offered as a witness should be excluded by reason of Ms interest in the event of the action (Laws of 1848, § 351). But the legislature did not stop here, and by the amendments of the Code in 1857 a party, except in a few specified cases, was made a competent witness for himself.

Notwithstanding these progressive changes in the law, the courts held, up to February, 1862, that no power existed to compel a party to make an affidavit to be read on a motion; and this ruling was invariably justified by the supposed prohibitory language of section 389 of the Code, which waS and still is to the effect, that no exa.Tnina.tion of a party shall be had, on behalf of the adverse party, except in the manner prescribed in the chapter to which said section belongs (Huelin v. Ridner, 6 Abb. Pr., 19 ; Palmer v. Adams, 22 How. Pr., 375).

The legislature thereupon passed subdivision 7 of section 401 of the Code, which is as follows:

“When any party intends to make or oppose a. motion 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. And the fees of such referee for such service shall be three dollars per day.”

Since that time this court has assumed that the enactment of this subdivision had cured the defect, and has acted accordingly (Moses v. Banker, 7 Robt., 131) ; and in Fisk v. Chicago, Rock Island & Pacific R. R. Co., 3 Abb. Pr. N. S. 430, the supreme court at special term so held. The court of common pleas, however, expressed a contrary opinion in Hodgkins v. Atlantic & Pacific R. R. Co., 5 Abb. Pr. N. S., 73 ; and that case, and the one now before us, are the only instances in which the power of the court to order the examination of a party in the manner last referred to has been questioned.

After a careful examination of the question we have no doubt as to the existence of the power. The former statutes contain the word “witness,” and in them as well as in the chapter of the Code that relate to the competency and examination of the parties and witnesss, the obvious distinction between a party and a witness is carefully preserved. The said subdivision 7 of section 401, on the other hand, uses the word “person,” which according to the lexicographers includes every living human being. Lord Dehmah’s act for improving the law of evidence, passed August 22, 1843, enacts, “No person' offered as a witness shall hereafter be excluded by reason of crime or interest, . . . but every person so offered may be admitted, . . . . provided that this act shall not render competent any party to any suit, &c., &c.; thus showing that the word “person” does include a party unless expressly excepted. The same express exception will be found in many of our statutes, whenever a party is intended to be excepted (see particularly §§ 398 and 399 of the Code). Now as prior to the enactment of the said subdivision 7 the courts did possess the power to compel the examination of every person competent as a witness, with the single exception of a party, and no exception in favor of a party is made therein, and inasmuch as the law-making power must be presumed to have intended something by its passage, the logical conclusion seems to be, that parties as well as witnesses were intended to be covered by that provision. This "will still more clearly appear when it is considered, that under the former practice the affidavit of a party was admissible, even before the statute of 1840, in the party’s own behalf in most, if not all, matters heard and determined on affidavits, and conld be read against him after it had been made ; and that the decree awarding a feigned issue frequently directed, among other things, that the plaintiff or the defendant should attend to be examined (Grah. Pr., 496). For these reasons and the further one, that the history and course of the legislation of this State plainly shows, that it has at all times been the settled policy of the legislature, as the representative of the progressive power of the State, to extend the right of the examination of parties as to matters connected with the issues as well as to such as arise upon collateral inquiries (see Winston v. English, 44 How. Pr., 398), we can come to no other conclusion than the one above indicated. The explanation as to the real object of the amendment which Mr. Justice Barrett attempted to give in 5 Abb. Pr. N. S., 75, namely, that it was intended thereby to substitute an expeditious and simple process for the cumbersome and tedious commission so long in vogue in the supreme court, rests upon too narrow grounds. Other courts did possess an expeditious process by simple summons, and the said subdivision 7 is made applicable in express terms to all the courts of record in the State. Surely no valid reason can be perceived upon grounds of public policy, why a party who asks a favor from the court upon his own affidavit, should, not be called upon by his adversary, in case of necessity, to make to the court explanatory or qualifying statements consistent with the truth.

Section 389 of the Code stands no longer in the way, if it ever did. There is no such repugnancy between this section and the said subdivision 7 as calls for a restricted interpretation of the word “ person” contained in the latter. The prohibition contained in the first relates to an examination upon the merits of the action, to an examination to procure evidence as to issuable facts; while the said subdivision 7 relates to the taking of an affidavit or deposition to be used on a motion, and consequently to an examination upon collateral questions arising during the progress of the suit. Besides that, subdivision 7 referred to was enacted long after section 889, and in case of conflict would operate as a modification pro tanto. Section 389 was enacted to do away with bills of discovery in aid of actions pending, and it was for that reason provided that no examination of a party should be had, except in the cases, for the purposes, upon the conditions and with the consequences specified in the succeeding sections of the same chapter.- But the examination thereupon substituted relates solely to the issues, and when thus construed, there is no conflict between sections 389 and 401 of the Code.

We are, therefore, clearly of opinion, that the power contended for by the appellants exists in the court. But, on the other hand, we cannot sanction an attempt to procure the examination of a party under the subdivision in question upon papers that do not disclose the necessity for the application. Such necessity must be made to appear by a statement of facts and circumstances. Upon this point the motion papers, as pointed out by the learned Chief Justice, are radically defective (see also 7 Robt., 131), and in consequence of such defect the order appealed from must be affirmed

Order affirmed, with ten dollars costs, with leave to appellants t,o renew motion upon payment of costs.

Sedgwick and Van Vorst, JJ., concurred.

Barbour, Ch. J.

This is an appeal from an order of the special term, founded upon affidavits and notice of motion, setting aside and vacating an ex pa/rte chamber order which appointed a referee to take the affidavit or deposition of Frederick N. Hurd, the defendant, under section 401 of the Code.

As the chamber order in question does not recite the papers on which it was founded, as required by the rule of this court, such order would probably have been set aside as irregular, if that defect had been pointed out in the motion papers, but it was not. The chamber order, however, appears to have been founded upon affidavit, and there are two affidavits bearing as early a date as the order and which may be assumed to be the affidavit mentioned in the order. One of them is made by a notary public who states, that on a certain day he presented an affidavit to the defendant and requested him to verify it, and on his refusing to do so, offered to correct the same, if incorrect, and that the defendant refused to verify it or to have it corrected.

The other affidavit, which is that of the attorney in the action, states the legal opinion that it is necessary for the plaintiffs to use the defendant’s affidavit upon a motion, and that the affidavit believes the facts set out in the affidavit are within the knowledge of the witness. But he states no facts tending to prove that his belief in regard to that matter, or his legal opinion, was well founded, nor did either affidavit disclose the nature of the action or defense, or the subject matter even of the proposed affidavit. Certainly, then, the papers upon which the order at chambers was made, were insufficient to warrant granting it, and for that reason the court might properly have set it aside.

But the learned judge who presided at the special term, vacated the order upon the ground, that although subdivision 7 of section 401 authorizes a party to an action to obtain in this manner the affidavit or deposition of “any person,” that authority does not extend to the examination of a party opponent, inasmuch as section 389 declares, that no examination of a party to an action shall be had on behalf of the adverse party except in the manner prescribed in chapter 6,—i. e., as a witness in the cause.

As subdivision 7 of section 401 was inserted in the Code as an amendment long subsequent to the enactment of section 389, it may well be that the former section ought to be considered as a modification, pro tanto, of the latter, to such an extent, at least, as will permit a party to require his adversary to make an affidavit of such facts, proven to be within his knowledge, as may appear to be necessary for the purposes of a motion, provided the facts thus sought to be discovered are of such a nature that they cannot be established upon the examination of the party as a witness under the provisions of chapter 6.

It is not necessary to consider that question here, however, as the affidavits upon which the original order was based are wholly insufficient even upon this theory.

The order appealed from should be affirmed, with costs. 
      
       Subsequently affirmed, in 3 Daly, 70.
     