
    WEBSTER v. STOCKWELL.
    N. Y. Supreme Court, First Department; Chambers,
    November, 1877.
    Affidavit to Obtain Examination before Trial.—Service of Order.—Sections 872, 878, and 875 of Code of Civ. Pro.
    If an affidavit to obtain examination states the facts required by section 872 of the Code of Civil Procedure, it is obligatory upon the justice to whom it is presented, to grant the order.
    
    
      An order for the examination of a party before trial, will not be set. aside merely because the papers were served only upon the attorney, by whom the party has appeared.
    
    Form of a sufficient order.
    Motion by defendant to vacate an order for his examination before trial.
    Hume Webster and others sued Alden B. Stock-well, for $25,000, the amount of two drafts drawn by the defendant upon the Howe Machine Co. of New York.
    The answer denied, on information and belief, the presentment and notice of non-acceptance and the protest. It also averred that the bills were given solely as collateral security for the payment of any balance that might be found due the plaintiffs, upon an open and unsettled account between the parties, and that the-account was still unadjusted, and had never been settled.
    After issue, and upon an affidavit alone, stating the facts required by section 872 of the Code of Civ. Pro., an order  was granted for the examination of the-defendant as a party before trial.
    
      A copy of this affidavit and order was served upon the defendant’s attorneys, but no copy of either, nor of ■any summons, subpoena, notices, or other paper informing the defendant of the examination, was served upon him.
    Upon the return day of the order, defendant’s counsel appeared and moved to vacate it, on the grounds that written notice in some form should have been served upon said defendant personally, and that ■such an affidavit alone was' not sufficient to enable the court to grant the order, for an examination of the pleadings and the issues thereby raised was necessary to enable the court to determine whether any examination could be properly had.
    
      Michael H. Cardozo (Billings & Cardozo, attorneys), insisted:
    I. Written notice of his proposed examination in some form, should have been served upon the defendant personally (Opinion of McAdam, J., in Riddle v. Cram, decided November 10, 1877; sections 853, 874, 875, of Code of Civ. Pro.).
    
      II. The commissioners of the New Code did not intend to create a new remedy, but only to provide a substitute for a bill of discovery, as was the well settled object of section 391 of the old Code (Glenney v. Stedwell, 64 N. Y. 120; S. C., 1 Abb. New Cas. 327, and note on pp. 332 to 341; Phoenix v. Dupuy, 2 Id. 146 ; Carr v. Great West. Ins. Co., 3 Daly, 160 ; Wiggin v. Gans, 4 Sandf. 647 ; King v. Leighton, 58 N. Y. 383 ; Burnett v. Snyder, 41 Super. Ct. (J. & S.) 347). Section 873 of the new Code, in terms, requires the judge to whom the application is made, to grant the order' when an affidavit conforming to section 872 is presented to him; but this only means in such cases and under such circumstances as a discovery could, properly, formerly be had in equity ; not to compel a defendant to discover matter which might subject him to a penalty, forfeiture, criminal prosecution, and the like (Hare on Discovery, part 3, ch. 1, § 1; Wigram on Discovery, p. 60 §§ 83-94; Paxton v. Douglass, 19 Ves. 226; Bailey v. Dean, 5 Barb. 303 ; Phoenix v. Dupuy, 2 Abb. New Cas. 146, and cases cited pp. 158, 159; Schepmoes v. Bousson, 1 Id. 481).
    III. An examination of the pleadings and of the issues is necessary to enable the court to determine whether an examination can be properly had (2 Story Eq. Jur. § 1497 ; Schepmoes v. Bousson, supra).
    
    IV. Defendant’s affidavit shows that the proceeding is not to enable plaintiff to prove his case, but to discover grounds of defendant’s action in his suit against them. A discovery for such a purpose should not be allowed.
    V. Subdivision 4 of section 872 must be interpreted, in the light of well established.practice and authorities, and the court must be able to see what the testimony is, and how it is material and necessary.
    VI. The court has power to vacate the order.
    VII. The court cannot enforce the order by punishing its disobedience as for contempt, because defendant was not personally served (Code of Civ. Pro. section 8, subd. 3; Temporary Act, section 2, subd. 2 ; section 10).
    
      Rastus S. Ransom (Arthur, Phelps, Knevals & Ransom, attorneys), opposed.
    
      
       By Rule 89, which takes effect January 1, 1878, the affidavit must specify the facts and circumstances which show, in conformity with subdivision 4 of section 873, that the examination of the person, is material and necessary. See Precedents in Abb. New Forms (Supp.), pp. 293-299. See Beach v. Mayor, &c., p. 113 of this vol., and Freiberg v. Branigan, p. 121.
    
    
      
       The remedy, however, for disobedience, in case of such service, is not by process for contempt (Freiberg v. Branigan, p. 121 of this vol.). The only remedy, if any, is by moving to strike out the pleading. Code of Civ. Pro. §§ 874, 853. See Precedents in Abb. New Forms (Supp.), p. 291, No. 401.
    
    
      
       The order was in the following form:
      “ On reading the affidavit of R. S. R., hereto annexed, and on the-application of the plaintiffs, who desire to take the deposition of the defendant in this cause, before the trial thereof, it is
      “ Ordered, That the said defendant, A. B. S., do appear before me on the day of , 187 , at o’clock, in the forenoon of said day, for the purpose of being examined.
      
        “It is further ordered, That a copy of this order be served five days before the said day of , 18
      
        [.Signature of (he judge.}
      
    
    
      
       The opinion in the case of Biddle ®. Cram, Marine Court, Specia ; Term, November, 1877, is as follows :
      McAdam, J.—The plaintiff procured an order for the examination of the defendant, as an adverse party before trial. A copy of the order and of the affidavit upon which it was granted, was served upon the attorney of the defendant, pursuant to section 875 of the Code of Civil Procedure.
      The defendant has not been personally served with the order, and does not appear for examination, and the question presented, therefore, is whether service upon the attorney alone furnishes the court with authority to compel the defendant’s attendance by attachment or to punish him for his non-attendance.
      The provisions of law relating to the examination of an adverse party before trial will be found in sections 870 to 876 of the Code of Civil Procedure.
      
        Section 870 authorizes the deposition of a party to an action to betaken at the instance of an adverse party.
      Section 871 authorizes the deposition of a person not a party to be taken.
      Section 872 provides what the affidavit to obtain such depositions shall contain.
      Section 878 provides for the order of examination, and directs what it shall contain. “The order must require the party or person to he examined to appear before the judge, or before a referee, to be named in the order, for the purpose of taking, the examination, at a time and place therein specified.”
      The order must also direct the time of service of a copy thereof.'
      Section 874 provides that “ If the party or person so served fails to obey the order his attendance may be compelled, and he may he punished in like manner, and the proceedings thereon are the same as if he failed to obey a subpoena, issued from the court in which the action is pending, or if no action is pending from the court of which the judge is a member.” This section requires us to ascertain the mannei of compelling a witness to attend for examination, and the proceedings to punish him for non-attendance, because the adverse party served with the order for examination is to be compelled to appear, and is to be punished for non-appearance in like manner.
      The manner of compelling attendance by subpoena, is by exhibiting the original to the witness, by delivering a copy or ticket containing the substance, and by paying him the legal fees (Code of Civ. Pro. § 852), and a person so subpoenaed, who unreasonably refuses to obey such subpoena, or an order duly served upon him, is liable in damages, and may be punished for contempt, and if he is a party to the action, the cowrt may, as an additional punishment, strike out his pleading (Id. § 853), and sections 855 to 863 contain the provisions authorizing the arrest of the witness, his committal where he refuses to be examined, and the proceedings thereupon, all of which, by section 874, supra, are made applicable to the proceedings for the examination of an adverse party, before referred to, and it is under these sections (852 to 863) that the power of punishing by fine, imprisonment, or striking out the pleading of the party, is furnished.
      
        Section 875 next provides that a copy of the order, and of the affidavit upon which it was granted, must be served upon the attorney for each party to the action, in like manner as a paper in the action.
      The N. T. superior court (Pake v. Proal, 2 Abb. New Cas. 418) decided that under this section (875) the service of a copy of the order and of the affidavit upon which it was granted, upon the attorney of the party whose examination was sought for, was sufficient, without service upon the party himself.
      The plaintiff’s counsel insists that this construction of the statute is correct.
      The high authority of the learned court which made the decision cited, requires that in declaring the practice of this court in the premises, I should either follow the precedent referred to, or furnish what I consider legal reasons for not following it. These reasons are that all the various sections of the act before referred to, .being in pari materia, must be construed together, particularly as they relate to one general scheme (see King v. Leighton, 58 N. Y. at p. 386 ; Thaule v. Ritter, 13 Abb. Pr. N. S. 439 ; Ansonia Brass and Copper Co. v. The N. Y. Chimney Co., 53 N. Y. 123), and that section 875 cannot be isolated from the rest and construed standing alone.
      Judge Folger, in delivering the opinion of the court of appeals in the case last cited (in speaking of an isolated section of another act), said, “ This section may not stand alone. It is to be read and applied in connection with every other section of the act. All must have their due and conjoint effect; each must be so far qualified and limited by the other, as that all may have operation in harmony, if so it may be, and each must be kept in subserviency to the general intent of the whole enactment.”
      The defendant may be out of the United States, having no knowledge whatever of the order for his examination, for aught that appears, and yet, if the construction "contended for be correct, and I have jurisdiction to do any act in the premises, I have the power to strike out his pleading and to punish him for contempt of court. No such construction can prevail. The service upon the attorney alone is incomplete. Attorney and client must both be served. The order will, therefore, be discharged, but, under the circumstances, without costs.
    
   Lawrence, J.

The examination must proceed. Section 873 of the Code of Civil Procedure, in my opinion, renders it obligatory upon the justice to whom the affidavit is presented to grant the order, provided the facts required by section 872 be stated ;and appear in the affidavit.

The defendant having appeared in the action, the service on the attorney was sufficient [Code, section 875, and my memorandum in the case of Thompson v. Sickles, November, 1877.

There was no appeal. 
      
       The decision in the case of Thompson «. Sickles, here referred to, is as follows:
      Lawrence, J.—A more critical examination of the provisions of section 875 of the Code of Civ. Procedure than I was able to make when these papers were first laid before me satisfies me that my first impression was erroneous, and the defendant’s attorney is right in contending that service can properly be made upon the attorney for the plaintiff. That section provides, in substance, that where the party sought to be examined has appeared in the action, a copy of the order and of the affidavit on which it is granted must be •served upon his attorney, but if he has not appeared, they must be served upon the party (See also Mr. Throop’s note to section).
      Order granted.
     