
    COURT OF APPEALS.
    The Merchants’ National Bank of the State of New York, respondent, agt. Sheehan, appellant.
    
      Code of Civil Procedure, section 870 — Depositions lfore trial— Order may be-granted before suit brought, upon the application of either plaintiff or defend-amt, for the examination of his adversary.
    
    Section 870 of the Code of Civil Procedure, authorizes an order for the examination of a person against whom an action is about to be brought; upon the application of the person who is about to bring such action, but before-it has been actually commenced.
    
      Decided January, 1886.
    
      M. J. Scanlan, for appellant
    
      G. Zabriskie, for respondent
   Andrews, J.

The question on this appeal depends upon the construction of section 870 of the Code, which is 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, &c., 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 section.”

The question presented is, whether this section authorizes an order for the examination of a person against whom an application of the person who is about to bring' such action, but before it has been actually commenced.

The section is obscure, and its interpretation is by no means : clear. The deposition to be taken is of the person “ who expects to be a party.” A person who contemplates bringing am’ action expects to be a party thereto, and it seems to be clear that under the section he can procure his own testimony to be ' perpetuated. The person against whom the action is to be ' brought may expect to be sued. A suit may have been threat- - ened, or he may know that a cause of action has accrued against ■ him, or that a liability is claimed hkely to result in 'litigation.. Is the remedy given by this section available to either of the' persons so situated, and may an order be granted before suit brought, upon the application of either, for the examination of - his adversary ?

Considering this section alone, the most natural meaning' would seem to. be that a person who expects to become, or to be made a party to an action, may, on his own application, have his deposition taken in anticipation of the actual commencement of the suit, and that the words or at the instance of an adverse party,” only apply when the person seeking the examination of his adversaiy is a party to a pending action. The ■; change of phraseology by the substitution of the word party mu the second clause for the word person in the first clause gives • some force to this construction. But section 876 seems to render it clear that a proceeding under section 870 may be instituted by an adverse party against the other, although no suit has been commenced, but is only contemplated. That section provides that certain specified sections for the punishment of contumacious witnesses shall apply “ to the examination of a party or a person expected to be an adverse party.” It would be absurd to provide for the punishment of a person who sought to perpetuate his own testimony. The section plainly was intended to provide for the case of a contumacious witness, , expected to be made a party to an action, whose examination was sought by bis adversary.

On tbe whole, we are of opinion that tbe order issued in this case on tbe application of tbe bank for tbe examination of Sheehan, against whom tbe bank was about to commence an action, was authorized, and that be was in contempt for disobeying it. Tbe bank might have commenced its action, and then have procured an order for tbe examination of tbe defendant Tbe granting of an order in such a case as this, before suit brought, upon tbe application of tbe proposed plaintiff, is within tbe discretion of tbe court, but it can rarely happen that justice will be promoted by granting an order on tbe application of a proposed plaintiff, before tbe commencement of an action, and tbe practice, unless carefully guarded, may lead to great abuses.

Tbe order should be affirmed.

All concur.  