
    FREDERICK S. WINSTON, Plaintiff and Respondent, v. STEPHEN ENGLISH, Defendant and Appellant.
    I. Examination of Parties before Trial under § 391 of the Code. 1. Mvcmiination of plaintiff before complaint served.
    
    1. Defendant has not an absolute right to have such an examination. a. Whatever may have been the doctrine of this court before the adoption of the present rules of court, it must yield to the modification made by the 21st of those rules, which is consistent with the Code.
    1. Applications for examination must now be made on affidavit, showing a case falling within the requirements of the 21 st rule, b. Such examination is not necessary to enable the defendant to prepare his answer, nor can it be said to be material in aid of a defence.
    1. Therefore no case is made for an examination under the provisions of the 21 sí rule.
    
    Before Monell, Freedman, and Curtis, JJ.
    
      Decided April 5, 1873.
    Appeal from an order.
    
      The defendant’s affidavit states that this action is "brought for damages for alleged false and malicious publications of and concerning the plaintiff.
    It further appears, that the defendant is in the custody of the sheriff of the city and county of Hew York, under an order of arrest granted in the action. It appears, by an affidavit of the plaintiff’s counsel, that no complaint has been served in the suit.
    The defendant obtained an order to examine the plaintiff under section 391 of the Code. An order was granted on the plaintiff’s application to show cause why this order to examine should not be vacated. On the hearing the order to examine was vacated. From this order tire defendant appeals.
    
      Sewell & Pierce, attorneys, Robert Sewell and John K. Porter, of counsel for respondent, urged:
    I. It is well known to the court, that prior to the promulgation of the rules which went into effect in February, 1871, this court and the Supreme Court differed very materially in their construction of section 391 of the Code of Procedure. The Supreme Court held that the examination of an adverse party could not be had until after issue joined, while this court permitted such an examination before issue, and before the service of a complaint. But while this court was thus liberal in its construction of the statute, it was particular in requiring that the person applying for such examination before issue should bring himself within the rules applicable to a bill of discovery in chancery, for which the examination before issue is expressly stated by the court to be a substitute. Ho fishing examination will be allowed; and the propriety or impropriety of the questions are not to be left to be decided on the examination. A proper case must be made on the papers (Duffy v. Lynch, 36 How. 509; McVicker v. Greenleaf, 4 Rob. 657; Merritt v. Thompson, 3 E. D. Smith, 283; Brevoert v. Warner, 8 How. 321).
    II. The rule of court now recognizes the former practice of this court, and recognizes the fact that such an examination is a substitute for a bill of discovery— calling it so by name. The rule is as follows :—
    “ The application for an examination, under section 391 of the Code, shall be upon an affidavit disclosing the nature of the discovery sought, to enable the party to frame his complaint or answer, or to prove his case or defence upon the trial, and how the same is material in aid of the prosecution or defence.”
    III. This proceeding cannot be sustained under this rule. The affidavit does not disclose the nature of the discovery sought, and how it is material either to prove the defendant’s case on the trial or to enable him to answer.
    r He does not yet know what the complaint will be, and how can he tell what he will be required to answer ?
    He does not know what defence he wants to prove on the trial.
    It appears that he knows the matters he speaks of well enough already to plead them (Farley v. Farley, 1 McCord’s Ch. 517).
    It does not appear that the plaintiff has any peculiar knowledge on the subject (Bullock v. Boyd, 2 A. K. Marsh, 323).
    There is nothing before the court whereby it can judge of the materiality of the discovery sought.
    The matter of allowing a discovery before issue joined rests in discretion, and is not appealable.
    IV. This proceeding of discovery to enable a person to plead, being in the nature of a substitute for the bill of discovery in chancery, can only be allowed in cases where it would be granted in chancery. This is not .one of the cases. The very nature of a libel suit prevents a discovery. It would be intolerable to allow a libeller to examine his victim, lest, haply, he might stumble on a defence. A man who alleges a defamatory fact of another, and publishes it to the world, takes the responsibility of having then at his command the means of proving that fact. He cannot say of a merchant he is insolvent, and when sued, ask the court as matter of grace to allow him to discover from the merchant’s books and papers his financial condition. He cannot say of a married woman she is unchaste, and when sued, place her under oath and ask her where she slept last night and the night before. Such a course would be increasing the power of the libeller under the sanction of the court (Glynn v. Houston, 1 Keen, 329; Brownell v. Curtis, 10 Paige, 213; Livingston v. Harris, 3 Paige, 528; Lambert v. People, 9 Cowen, 578; Northrup v. Hatch, 6 Conn. 361; Leggett v. Postley, 2 Paige, 969; Story Eg. Pl. §§ 521, 524, 579, 598; U. S. v. 28 Packages, Gilpin, 306; Butter v. Catlin, 1 Root, 310; Ocean Ins. Co. v. Field, 2 Story, 59; Adams v. Porter, 1 Cush. 170; Harrison v. Southcote, 1 Atk. 539; Brownsword v. Edwards, 2 Ves. S. 243; Baker v. Prichard, 2 Atk. 389; Mitchell v. Koecher, 11 Beav. 380; Livingston v. Tompkins, 3 John Ch. 542; The People v. Mathu, 4 Wend. 229; 1 Burr's Trial, 244; Southerd v. Rexford, 6 Cowen, 254; Bellenger v. People, 8 Wend. 595; Marsh v. Davidson, 9 Paige, 580; Lynch v. Henderson, 10 Abb. P. R. 345; Keeler v. Dusenbury, 1 Duer, 661; Opdyke v. Marble, 44 Barb. 64; Day vTuckett, 1 Bail Court R. 203; Metro Saloon Co. v. Hawkins, 4 Hurl. & Nor. 146; Girand v. Beach, 3 E. D. Smith, 337).
    V. In England a bill of discovery in aid of a libel suit is authorized by statute, but the only relief allowed is to discover the names of the owners of the newspaper in which the libel has been published. The fact of the existence of this statute shows that the right did not exist without it. Even this limited right does not exist here, for we have no statute allowing it (Opdyke v. Marble, 44 Barb. 64).
    VI. Under the common-law procedure act in England, authority is given to examine parties similar to the provisions of our Cede. The court, however, has decided that the provisions do not apply to a libel case (Com. Law Pro. Act. 17 and 18 Vic. C. 125; Metro Saloon Co. v. Hawkins, 4 Hurl. & Nor. 146).
    VII. A person cannot be forced to answer a question which will tend to convict him of a criminal charge. The evidence of criminality consists of many links, and a person is not to be forced to supply even one of the most trivial of those links.
    It may be said that this is the privilege of the witness, and he may refuse to answer. Therefore examination may be ordered and the questions put, and he may or may not claim his privilege. Such is not the law. The court will not allow the examination on the chance that the wifcdess will answer. Courts are not gamesters or speculators in the doctrines of probabilities (Stern v. Sevastopuli, 32 L. J. C. P. 268; Baker v. Lane, 3 H. & C. 544; Bowden v. Allen, 22 Law Times, 342; Tupling v. Ward, 6 Hurl. & Nor. 749).
    VIII. The order should be affirmed, with costs.
    
      Thomas Darlington, for appellant.
   By the Court.—Monell, J.

Upon the return of the summons issued by a judge of this court, requiring the plaintiff to appear and be examined before trial at the instance of the defendant, under section 391 of the Code, it was shown by affidavit, that although the action had been commenced by the service of a summons, no complaint had been served upon the defendant; and it is understood that the decision at the Special Term was put upon the ground, that until the complaint was served upon the defendant, there was nothing upon which the plaintiff could be examined.

But the defendant, upon his appeal from the order made at the Special Term, setting aside the summons for the plaintiff’s examination, insists that he has an absolute right, at any time after the action is commenced, to take the plaintiff’s examination, and that the court has no discretionary power over the matter.

Whatever may have been the views of this and of other courts, as to the right of examination at any time before the trial, even before issue joined or complaint served (see McVickar v. Greenleaf, 4 Robt. 657), those views must, I think, now yield to the modifications in the law which have been made since that and other similar decisions were rendered.

The convention of judges convened pursuant to chapter 408 of the laws of 1870 (vol. 1, p. 951, § 13) had power to revise, alter, abolish, and malee rules, which it was declared should be binding upon all courts of record, so far as they might be applicable to the practice thereof.

It will be seen that the restrictive words in a similar provision in the Code [Code of 1849, § 470), “ not inconsistent with this act,” are left out of the act of 1870. But I do not think it was intended to remove such restriction, or to authorize the making of any rule, which might conflict with- the provisions of the Code, or abridge or impair any right or remedy given by it.

The power, however, did extend to the adoption of all necessary and proper rules, to regulate the practieé in actions and proceedings in all courts of record.

In accordance with that power, the present 21st rule of court was adopted, and it requires that the application for the examination shall be upon affidavit, disclosing the nature of the discovery sought, which discovery, it must be averred, is required to enable the party to frame his complaint or answer, or to prove his case or defence, etc.

The rule, it will he seen, provides first for the examination of the defendant to. enable the plaintiff to frame his complaint; second, of the plaintiff to enable the defendant to frame his answer ; and third, of either party after issue.

The rule follows in effect the construction by this court, of the 391st section of the Code in McVickar v. Greenleaf, supra, so far as it permitted the examination before issue; but by necessary intendment limits the right to the purposes specified.

The limit thus put upon the examination, namely, for a plaintiff to frame his complaint, or for a defendant to prepare his answer, is in accordance with the true intent of the statute, and does not in my judgment conflict with any of its provisions.

Whatever may be the right, therefore, to have the examination at any time, the application must conform to the rule, and it must be made to appear that the examination is required for one of the purposes specified.

If it does not, or if the court cannot see that the examination is material in aid of the prosecution or defence, the application should be denied.

In this cáse it was an attempt by the defendant to examine the plaintiff. It could not be said to be necessary to enable the defendant to prepare his answer, for until the complaint was served, he could not know what the alleged cause of action was or would be, nor what he would have to answer; nor could it be seen that it was material in aid of a defence, until an issue had been framed.

It was therefore a question properly addressed to the power of the court; and as the defendant. had not brought himself within any of the specified cases, authorizing the examination, the decision of the court at the Special Term setting aside the summons, was correct.

I have not found it necessary to examine the other question; namely, as to the right to require the plaintiff to testify against himself in an action of the nature it is said this is. That is a question which, as it seems to me, does not now properly arise.

The order should "be affirmed with costs.

Cubtis, J. (concurring).

The right to examine a party to an action at the instance of the adverse party, after the commencement of the action, is conferred by the Code. That this is an absolute right where the materiality appears, is held in various decisions (McVickar v. Greenleaf, 4 Robt. 657; Fullerton v. Gaylord, 7, Robt. 559; Duffy v. Lynch, 36 How. P. R. 509).

It was urged on the argument, that the force of this provision was somewhat modified and affected by the 13th section of chapter 408 of the laws of 1870, and the adoption of the 21st rule of the Supreme Court, by the convention of judges, which met pursuant to the requirements of that law. The 13th section of the law of 1870 is as follows:

“ All rules of the Supreme Court now in force, not inconsistent with the constitution or any statute of the “ State, shall remain in force until abolished or altered “by the General Term justices, the chief judges of the “Superior Court of cities, the chief judge of the Court “ of Common Pleas of the city of Hew York, and of the “City Court of Brooklyn, in convention assembled at “the capital in the city of Albany. A convention of “such justices and chief jndges shall be held at the “place aforesaid, on the first Wednesday in August, “1870, and every two years thereafter; and such contention shall revise, alter, abolish, and make rules, “which shall be binding upon all courts of record, so far “as they may be applicable to the practice thereof.”

The 21st rule of the Supreme Court is as follows :

“The application for an examination under § 391 of “the Code, shall be upon an affidavit disclosing the “nature of the discovery sought, to enable the party to ‘ ‘ frame his complaint or answer, or to prove his. case or “defence upon the trial, and how the same is material “in aid of the prosecution or defence.”

I am unable to see that the legislature attempted to confer any power upon the convention of judges to alter or nullify in any degree the law, or that this rule No. 21, adopted by the convention, adds to or restricts in any way the operation or effect of sections 390 and ' 391 of the Code.

Even if any modification of these sections had been attempted, by inserting provisions to that effect in a rule, it would have been inoperative, as the constitution of the State does not authorize the legislature to delegate any law-making power to a convention of the judges. (Barto v. Himrod, 3 N. Y. R. 941.)

The Code, by directing that the party shall “be examined as a witness,” and “ subject to the same rules of examination as any other witness,” limits the examination to what is material.and relevant to the prosecution or defence. To carry out and give effect to these provisions of the law, this court has indicated at Special Term, that the affidavit upon which the application for examination is made shall disclose what is requisite in respect to the action, to enable the court to properly apply and enforce the directions of the Code (Duffy v. Lynch, 36 How. P. R. 509; Greene v. Herder, 7 Rob. 463).

The Supreme Court rule No. 21 is substantially in accordance with this view. It is framed for the purpose of enabling the court to have the information before it that will enable it to enforce the provisions of section 390 and 391 of the Code, and also to restrict the examination of the party to that which is relevant and material, and which mode of examination is alone authorized under these sections.

When the motion for the examination is made by the defendant, before answering, the affidavit, in order to show the nature of the discovery sought, should set out the complaint or its material allegations, and the nature of the defence. Where no complaint, as in the present action, has "been served, "but an affidavit stating the cause of action has been made and served with the order of arrest on the defendant, pursuant to section 181 and 184 of the Code, then if the defendant in his moving affidavit should set it out, or its material allegations, together with the nature of the defence, a question would arise which we are not now called upon to decide. It is only when this information is thus presented that the court is able to limit the examination to that which is relevant and proper, and thus give effect -to the provision of the Code, that the examination of a party shall be governed by the same rules as that of any other witness.

The affidavits on this motion show that the action is brought for damages for alleged false and malicious publications of and concerning the plaintiff, and that the nature of the discovery sought by the examination of the plaintiff, is to obtain information in regard to a great variety of alleged transactions and occurrences.

It does not appear that these matters, in respect to which this examination of the defendant is sought, have any relation, direct or indirect, with the alleged publications for which the action is brought.

It nowhere appears in the motion papers what those publications were, or even what subjects they touched upon. The most careful examination furnishes no information.

The defendant does not set out the matters complained of by the plaintiff, either as contained in the plaintiff’s affidavit made to procure the order of arrest, or otherwise. The court is left without the means of knowing whether the examination sought is an inquiry into the past life and acts of the plaintiff, or in respect to matters pertinent to the action; it has no means of causing the examination to he conducted pursuant to the requirements of the Code, and restricting it to such matters as are relevant, material, and proper.

In this view of it, and upon the present papers, the order appealed from should be affirmed with costs, but without prejudice to the defendant’s taking out another one founded upon a proper affidavit.  