
    MATTER OF PAULMIER.
    
      N. Y. Supreme Court, First Department; Special Term and Chambers,
    September, 1878.
    Examination of an expected Pasty to an Action, before Action brought. — Code of Civ. Pro. § 870.
    The provision of section 870 of the Code of Civil Procedure, — that the deposition “ of a person who expects to be a party to an action about to be brought, ” may be taken at any time before trial, —is only for the examination of an expected party when he himself applies for it, and not for the examination of a party not yet sued, at the instance of another, who contemplates a suit against him.
    The expression “ adverse party,” in said section, is not applicable to an individual not yet a party to an action.
    Motion to vacate an order for the examination of an expected party before action brought.
    An order was obtained, upon the ex parte application of Andrew F. Paulmier, for the examination before a referee of John A. Sweeney and William H. Sweeney before suit brought.
    The affidavit upon which the order was granted and which was made by the attorney in fact of the applicant, who was a resident of New Jersey, stated that said Paulmier intended to bring an action in the supreme court against said Sweeneys, who did business in New York city and resided in Brooklyn, and that neither of them had appeared in the action ; that the said Paulmier was the owner of a certain railroad bond, which was described, and that it had been stolen from Mm by some unknown person on some day previous to a certain date, and had been traced into the possession of the said Sweeneys ; that the said Paulmier claimed that they had obtained the same fraudulently from the thief or with notice that the same had been stolen ; and that they must account to him and pay him for the same; that said Paulmier and the deponent, as his agent, were advised, and the deponent verily believed, that in order properly to frame the complaint in the said expected action it would be necessary to examine both of said Sweeneys, and that the testimony of each of them was material and necessary for the prosecution ; that both of said persons, who were expected to be the adverse parties in the said action, were each of full age and sojourning within this State, as deponent was informed and believed.
    An order to show cause why the aforesaid order for the examination of the Sweeneys should not be vacated, was obtained upon the affidavit of one of them, corroborated by the other, alleging that the said attorney in fact of said Paulmier, had called upon them some time previously, and consulted with them with reference to the facts connected with aforesaid bond ; that on said consultation all the facts relating to their connection therewith were fully disclosed to him, and that nothing further or different could be disclosed by them ; that said attorney was in possession of all the facts in connection therewith known to them, and that the said examination would unnecessarily take them from their business ; that they were advised by their counsel that the affidavit of said attorney disclosed his possession of the knowledge of the facts necessary for the commencement of an action, if any existed, and that the said examination was merely inquisitorial; that said Palmier was a non-resident of this State, and had not filed security for costs; that the deponents were advised by their counsel that they could be required to appear as witnesses as well after action commenced as before ; and therefore prayed that the order be vacated and said Paulmier remitted to his rights after action brought; that they were advised by their counsel that the affidavit upon which the order was granted did not conform to rule 89 of the general rules of practice, in that it did not specify the facts and circumstances which showed that their examination was material and necessary; that they denied the statements in said affidavit that they had obtained said bond fraudulently from the thief, or with notice that the same had been stolen ; averred that they never had possession thereof as purchasers, but'received it simply as brokers to be sold for the person who held it; that they never became possessed thereof as purchasers nor by a gift, nor did they sell the same, nor receive the proceeds thereof to their own use.
    Then followed denials of the necessity of the examination in order to frame the complaint and the reasons for a return of the order to show cause before the regular motion-day.
    
      Amos G. Hull, for the motion.
    The proposed plaintiff being a non-resident, and this order being discretionary, it ought not to be granted in his favor without securing the rights of the resident. He should be required to commence his action before such an order is granted by the service of a summons, and then he can be required to give security. By the applicant’s affidavit a complete cause of action appears if the alleged facts can be sustained, and if he wishes he can make the examination after the commencement of the action and before trial, or on the trial, but should not be allowed to go into an inquisitorial examination before action brought. The affidavit is defective in not specifying the facts and circumstances which show that it is necessary and material (Rule 89). If the Sweeneys obtained the bond fraudulently from the thief, or with notice that it had been stolen, it would subject them to a criminal prosecution, and they could not be compelled on the examination to testify against themselves (Code of Civ. Pro. § 837). It is not alleged in the affidavit that any counsel of this court has advised the applicant that it is necessary to make the examination in order properly to frame the complaint; nor are facts stated to authorize the proceeding under section 870 of the Code of Civil Procedure as amended by chapter 299 of the Laws of 1878. The provision for a deposition of a person who expects to be a party to an action is intended only to give relief to those who expect to be made parties to an action, and not for the benefit of those who intend making others adverse parties (Glenney v. Stedwell, 64 N. Y. 125). Neither can the proceeding be sustained under section 871 {Id.).
    
    
      Pllioi T. Shepard, opposed.
   Westbrook, J.

An order was made to examine John A. Sweeney and William H. Sweeney, upon the application of Andrew F. Paulmier, he stating that he expected to bring an action against them, and that such an examination was necessary in order to frame a complaint in the action which he contemplated. The question which the motion presents is, does the section 870 of the code provide for such an examination %

As amended by chapter 299 of laws of 1878, the section (870) of the code to which reference has been made reads as follows : The deposition of a party to an action pending in a court of record or of a person who expects to be a party to an action about to be brought in such a court other than a court specified in subdivision sixteenth, seventeenth, eighteenth or nineteenth of section two of this act may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial as prescribed in this article.” It will be observed that provision is made to examine two classes of individuals, and no others. He who is ordered to be examined must be either “a party to an action,” or “ a person who expects to be a party to an action.” If he belongs to either class, he may be so examined “ at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant.” Asno action is pending between these parties, the applicant for the order was required to prove that each of the individuals ordered to be examined was “ a person who expects to be a party to an action.” This was not attempted to be shown, but the allegation is that the applicant for the order expects to sue them. Giving, then, to the code the meaning claimed for it by the counsel who seeks to uphold the order, that provision has been made to examine a person whom some one expects to sue, and that such examination can be had at the instance of the intended prosecutor, the objection still remains that the section provides that if the individual to be examined is not “a party to an action ” he must be “ a person who expects to be a party to an action about to be brought,” and that the affidavit upon which the order for the present examination was obtained makes no attempt to show, because it is nowhere therein alleged or claimed that the parties to be examined have any such expectation.

It is manifest, however, as an expectation entertained by an individual can only be proven by himself, that provision is only made for the examination of an expected party when he himself applies for it, and not for the examination of a party not yet sued, at the instance of another, who contemplates a suit against the former. Neither is the expression ‘ ‘ adverse party, ’ ’ at whose instance the order for examination must be procured, when not obtained by one for the purpose of taking his own evidence, especially when it is followed by the words “co-plaintiff or co-defendant,” which are clearly indicative of its meaning, applicable to an individual not yet “a party to an action.” Possibly, depending upon its connection, it might sometimes have such a signification; but in the section under consideration, as the word “party” is previously used to designate an individual already connected as such -with a pending suit, whilst the one not so circumstanced is styled a “person,” it is evident that it is used in its technical legal sense to designate him who is the “ adverse party” to the “party in an action.”

The views expressed, which are founded upon the words used, are strengthened by the absence of any language directly covering a case like the present, and also from the consequences flowing from a contrary construction. If provision was intended to be made for the examination of a person who some one else expected to sue, it was easy to say so clearly, by declaring that such examination could be had at the instance of an expected adverse party, as well as at the instance of one who already actually was “an adverse party.” The addition of the simple words we have suggested, preceded by the conjunction or, would probably have accomplished the object, though it might be difficult for one man to prove that another expected to be prosecuted, which the language would still require, and the whole section would thereby be made awkward. The framer, it is to be presumed, understood this as well as the court. Had those words been added, or any clearly providing for an examination in a case like the present, he knew that individuals might be subjected to great annoyance and expense by examination at the instance of persons who really did not know whether they would bring a suit or not, or that the person sought to be examined expected one to be brought, but who would, nevertheless, so torture their desires and hopes, to find out the materials for an action by the examination, as to make a sworn declaration which would bring them within the provisions of the statute.

Such inquisitorial power we cannot think was intended to be conferred, and if it was, it should have been so clearly expressed and declared as to leave no room for criticism.

The motion to set aside the order of examination is granted, without costs, as the question is novel, and the court by granting the original order fell into the error now corrected.  