
    John C. Roberts, Resp’t, v. The Press Publishing Company, App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed March 14, 1890.)
    
    1. Examination bbfobe tbial—Affidavit.
    The affidavit to procure an order for examination of plaintiff before answer stated that the nature of the defense was a defense of justification by pleading that plaintiff did attempt to obtain from the possession of the owners the sum of five dollars by false representations, and that it was necessary to particularly plead the names of the persons who were swindled, the representations made and the particulars wherein such representations were false, etc., and that none of these things were known to defendant or could be ascertained except through an examination of plaintiff. Held, that the affidavit did not state the nature of the defense within the meaning of § 872 of the Code, and that the order was properly set aside.
    3. Same.
    Where all the matters aimed at by the proposed order are such as would call for an examination as to the commission of a crime or as to something that is a link in the chain of proof of a commission of crime, the judge should set the order aside on the application of a party.
    Appeal by defendants from order vacating order for examination of plaintiff before answer.
    Action for a libel published by defendant in the World, substantially charging plaintiff with swindling and obtaining money Tinder false pretenses.
    
      Delancey Nicoll, for app’lt; George Finch, for resp’t.
   Sedgwick, Oh. J.

In my judgment the papers on which the order for examination was made did not show what, under the Code, it is necessary to show to support such an order.

Under § 872, Code Civ. Pro., the affidavit must set forth the nature of the defense. This implies that a defense exists to the knowledge or information of the defendant, but that by reason of his ignorance of sufficient particulars he is not able to plead it properly. It is not possible truly to set iortk the nature of a defense, when it is not known, or upon some information believed, that there is a defense.

The affidavit contains the following: “ The nature of the defense which the defendant has and intends to set up” is: A defense of justification by pleading and proving that the plaintiff did attempt to take from the possession of several owners of property and to obtain from such possession by color and aid of fraudulent and false representations or pretences the sum of five dollars from each of them. “ I verily believe that in order to entitle the defendant to prove its defense of justification as aforesaid, it is necessary that it should plead the same particularly in its answer and should state particularly the names of the persons who were swindled by the said Boberts as aforesaid, the representations which Boberts made to induce them severally to part with their property and the particulars wherein said representations were false, together with the names of the persons who conspired with said Boberts to commit said crime of petty larceny. Hone of these things are known to me or to the defendant and the defendant has no means of ascertaining the same, except from the examination of the plaintiff before answer.”

This admits that the defendant does not know whether the representations were false. Yet that is an essential matter. If the defendants have no information as the falsity of the pretenses, they can have no belief that there is a defense. The form of the affidavit is that they have no means of ascertaining “ the particulars wherein said representations were false.” Obviously, there can be no knowledge of, or information that, the rejiresentations were false in general. Any knowledge or information on that subject must relate to particulars.

The whole of the affidavit taken together shows that the defendants do not know, and are not informed in general or particular, what pretenses were made or what was their nature.

The substance of the matter is that the defendant is ignorant of the existence of a defense.

Its nature, therefore, cannot be set out If, through the examination of the plaintiff, he could learn certain things, then for the first he would be 'able sufficiently to say what the nature of the defense was. At present he cannot presume that that examination will show that he has a_ defense, the nature of which he can now competently set out.

It is also true, for like reasons, that it does not appear that the examination of the plaintiff is necessary to the defendant framing an answer. It is not necessary until it is first assumed that there is some defense in fact, as to which the plaintiff can give the particulars necessary to be known for the purposes of pleading.

It does not seem that the section in question was passed for the purpose of enabling a defendant to ascertain whether or not he had a defense, when, at the time, he cannot affirm that one exists according to his knowledge or information.

The granting of such an order was, in my opinion, without the discretion of the court. Section 873 declares that “where the person to be examined is a party to a pending action, the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined.” This describes the duty of the judge to exclude from the examination certain matters, in his discretion, as the exclusion must necessarily be based upon the opinion of the j udge, as to the nature of the matter excluded, rather than upon the nature of the matter permitted.

I am of opinion that the judge may properly refuse to allow any examination, where the whole of it is intended to be directed to matters which the judge would exclude in a case where he might allow examination as to some matters.

Where all the matters aimed at by the proposed order are, as in the present case, such as would call for an examination as to the-commission of a crime, or as to something that is a link in the. chain of the proof of a commission of a crime, the judge should set aside the order, under the discretion given to him, on the-application of the party.

This would be in analogy to the rule upon hearing a demurrer to a bill in chancery for the discovery of testimony. If the bill disclosed that the interrogatories contained in it would call for evidence tending to convict the defendant of crime, the demurrer was sustained. The right that the defendant had to be-privileged from answering such questions, was accorded to him there. It was not postponed to the time of answering, to see: whether or not he should claim his privilege in the answer.

I further think that, apart from the particular clause that has just been referred to, it is in every such case within the discretion of the court to set aside an order of this kind. And for the reason that such an examination will not produce a result beneficial to the party. Hardly anything can be more improbable, when it is foreseen with certainty that the plaintiff may exercise a right-to refuse to answer, and especially when he sets up his right a. short time before the examination is to take place, that the plaintiff would waive that right and prove for the benefit of the defendant that he has committed a crime. The counsel and the judge, know that an examination would be useless and in vain. I am - sure that actual experience confirms that.

The order should be affirmed, with ten dollars costs.

Freedman and Ingraham, JJ., concur.  