
    COOK a. BIDWELL.
    
      Supreme Court, First District;
    
    
      General Term, March, 1864.
    Examination of Adverse Party before Trial.
    An order for thé examination of the adverse party, under section 391 of the Code, is allowed as a matter of right, upon proof that the action is at issue, and that the applicant desires such examination as to matters material to the issue.
    Appeal from an order denying a motion to set aside an order for the examination of defendant before trial.
    The action was by John F. Cook against John A. Bidwell. The facts are sufficiently stated in the opinion.
    
      Richard Winne, for the appellant.
    I. The order of the 4th of November, 1862, requiring the defendant to appear, &c., should have been set aside. No order was necessary at that stage of the proceedings, even if the plaintiff was entitled to examine the defendant before the trial. The proper proceeding was to serve on the defendant a summons. (Voorhies’ Code, § 392, and cases; Gaughe a. Laroche, 14 How. Pr., 453; S. C., 6 Abbotts’ Pr., 284.) The order should for that reason be reversed.
    II. The defendant cannot be examined before the trial except conditionally, the same as any other witness, and for the same reason.(Code, § 399, amended 1862.) Prior to 1847, a party to an action could not be examined as a witness in any manner or on any account, with perhaps a single exception. By the Laws of 1847, 630, ch. 462, a party might examine an adverse party under certain circumstances and with certain restrictions. The provisions of this act are embodied in the Code and are now sections 390-392. At the time of the enactment of the Code, and until 1857, a party to an action could only be examined by virtue of the provisions of sections 390,391. There was no other mode of examining a party. Section 399 did not authorize the examination of a party. Sections 390, 391, in the Code as now printed, were sections 344, 345. (Laws of 1848, 559, ch. 379, sections 344, 345.) These sections have never been amended since the adoption of the Code, except a verbal amendment to section 391 (345,) in 1849. Section 399, as originally passed, then 352, did not authorize an examination of a party, but on the contrary expressly prohibited it. Section 398, originally 351, has not been changed since the Code was adopted, and provides that “ no person offered as a witness shall be excluded by reason of his interest in the event of the action.” A reference to these provisions of the Code shows the necessity of these sections 390 and 391, to enable the party to have the benefit of examining his adversary if he saw fit to do so. It was the only way in which he could examine an adverse party. In 1857, section 399 was amended, permitting a party to testify in his own behalf. Various amendments have been made to that section, until, in 1862, it provides that a party may be examined in the same manner and subject to the same rules of examination as any other witnesses. If a party is to be examined the same “ as any other witnesses,” it follows that he cannot be examined before the trial except by commission, or on an order that he be examined conditionally under the statute, and for the same reason that the statute authorizes the examination of a witness otherwise than at the trial.
    
      Miller, Peet & Nichols, for the respondent.
    I. The examination of an adverse party before the trial, at the option of the party seeking the examination, is a matter of right granted by section 391 of the Code. (Green a. Wood, 6 Abbotts’ Pr., 277; Taggard a. Gardner, 2 Code R., 82; Leeds a. Brown, 5 Abbotts’ Pr., 418; Chichester a. Livingston, 3 Sandf, 718; Report of Commissioners of Code, 1847.)
    II. If the judge has discretion to refuse the examination before trial for good cause shown, it is not good cause for such refusal that the party sought to be examined prefers to testify ■ at the trial, and offers to stipulate that he will attend for that purpose. (Green a. Wood, Supra.)
    
    III. The existence of -this right is proved by the explicit language of the Code (§ 391), and by the history of the legislation on this point. 1. The Legislature, prior to the Code (Laws of 1847, 630, ch. 462), gave the absolute right to examine an adverse party in the same manner as any other witness—orally, on commission, or de bene esse. That contemplates an examination on the trial, or, in certain cases, even before issue joined. 2. The Eeport of the Commissioners of the Code refers to the act of 1847, and says, “We think it important to extend it, so as to permit the examination to take place before the trial, at the option of either party,” and then assigns satisfactory reasons for this proposed extension. The report was adopted in this particular. 3. The beneficial rights secured by the rules and practice prevailing in equity have been simplified and substantially preserved. 4. The chapter entitled “Examination of Parties,” chapter 6, commences by declaring actions for discovery abolished, and then proceeds to provide substitutes. The next section provides, as explicitly as language can state it, that the order for any examination of a witness at the trial may, if that witness be the adverse party, be had before the trial, at the option of the party claiming it; and this- is the only substitute for a bill of discovery.
   Sutherland, J.

Section 390 of the Code provides, that a party to an action may be examined as a witness, at the instance of the adverse party, either at the trial, or conditionally, or upon commission, “ in the same manner, and subject to the same rules of examination, as any other witness.”

The caption or heading of the following section, 391, is, “ Such examination also allowed before trial—Proceedings therefor.”

The body of section 391 is: “ The examination, instead of being had at the .trial, as provided in the last section, may be had, at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled,” &e.

The order made by the judge, on the application of the plaintiff, that the defendant appear and be examined in this action as a witness, was made on an affidavit, showing that the action was at issue, and stating certain other facts, tending to show that the plaintiff desired such examination as to certain matters material to the issue, but the affidavit did not show that the defendant was about to leave the State, or state any other fact tending to show that he would not be able to attend the trial of the action; in other words, the affidavit did not show any right to examine the defendant conditionally.

The question then is, whether the plaintiff had an absolute right, under section 391 of the Code, to examine the defendant before trial, upon simply showing that the action was at issue, and that he desired to examine the defendant as to matters material to the issue.

In my opinion he had. I think the decision in Green a. Wood (6 Abbotts’ Pr., 277) was right,—so far, at least, as it relates to this question.

The doubt as to the construction of section 391, must have arisen from the fact, that the caption to that section commences, Such examination,” &c.; and the body commences, “ The examination,” &c., when three examinations of the adverse party are mentioned in the preceding section (§ 390). But it is plain that the words, “ Such examination,” and the words, The examination,” refer to the examination of the adverse party generally, and not to either of the examinations of such party provided for in the previous section, at the trial, conditionally, and upon commission. It is plain that by section 391 it was intended to provide for another examination of the adverse party. Any other construction of section 391 would make it useless; for the examination of the adverse party at the trial, conditionally, and upon commission, is fully provided for by section 390. Moreover, it would have been absurd to say that a party might be examined conditionally or upon commission, at the option of his adversary, when the right to such examinations was carefully regulated by law, without repealing or abrogating such law, and it would have been useless to say that a party might be examined at the trial at the option of his adversary, after giving the right of examination at the trial. The option to be exercised by the party claiming the examination under section 391, is between the examination at the trial, and before the trial. I do not see why the right to the latter examination, under section 391, is not just as absolute as the right to the former under section 390. Neither examination can be had except in an action after issue, and as to matters pertinent to the issue.

I do not see that the amendment, in 1862, of section 399 of the Code, has any bearing on the question in this case.

The order appealed from should be affirmed, with $10 costs.

Leonard, J.

—I concur. The order of affirmance may fix the time for proceeding with the examination.

Clerke, J.

—I concur.  