
    Godfrey Goldmark, Respondent, v. U. S. Electro-Galvanizing Company, Appellant.
    First Department,
    March 9, 1906.
    Deposition — examination of officer of corporation—Code "of Civil Procedure, §§ 870, 878, 873, and rule 88 construed—mattérs not a defense to suc-h application — laches no bar. ,
    Section 870 of the Code of Civil Procedure, ns amended by-Laws of 1904, chapter ' '696, allows a" party to an action to take the deposition of any party to such action during as .well as before trial. ■ •
    Rule 83 of the General Rules of Practice-in'requiring the applicant, to show, .in conformity.with subdivision 4 of section 873 of the Code of. Civil Procedure, that the examination of the party is, “ material and necessary,” is designed :to ' prevent añ abuse of* such examination by using it. for ulterior or improper .purposes.
    Code of Civil Procedure, sections 870, 873, 873, and court rule S3 construed.
    When an applicant -has complied with the above sections "of the Code and-with said rule; it is. no answer to his application' to show that he can subpoena the witness sought to be examined, of that the witness or defendant will stipulate to appear at -trial, or that the evidence sought can be obtained through-other persons.
    ;On such application there can he no question of laches, as by the amendment to section 870 of the Code of Civil Procedure such examination can be had during ■trial: * . - '-
    . Appeal by the defendant, .the H. S. Electro-Galvanizing Company, from an-order of the Supreme -Court,-made at the Hew York ,;Special;Term -and entered in the office of .the clerk of'the county of New York on the 30th- day of January, 1906, denying the defend- - ant’s motion to vacate an order for the examination- before trial of the president of the defendant company.
    
      David Gerber, for the appellant.
    
      Theodore L. Frothingham, for the respondent.
   Ingraham, J.:

This action, was to recover commissions earned by the plaintiff under an agreement with the defendant, a foreign corporation, with a place of business in the county of Kings, in the city .-of New York. The action is at issue and on the calendar ready for trial. - On January 10, 1906, the plaintiff presented an affidavit to a justice of the Supreme Court, and upon that affidavit an order was granted requiring the president of the defendant to appear and be-examined pursuant to section 873 of the Code of- Civil Procedure, and to produce certain books of the corporation for use upon the oral examination. The defendant moved to vacate this order. This motion was denied, and .the defendant appeals.

Prior to May .9,1904, section 870 of the Code of Civil Procedure gave to a party - to an action pending in a court of record, other than the courts therein excepted, the right to take the deposition of any party to the action at any time before the trial.” - (See Laws of 1878,. chap; 299.) By chapter 696. of the Laws of 1904. this section of the Code was amended by giving a party the right to také such a deposition during as well as before the trial. So that, as the provision noW stands, any party to the action has the.right to take the deposition of a party at anytime befoi'e or during the trial. Section 872 of the Code provides that, if the action is pending in the Supreme Court, a person desiring tó take such a deposition must present to a justice of the Supreme Court, or to a co.unty judge, an affidavit setting forth the names and residences of all the parties to the action, whether or not they have appeared, with the name and the residence or office address of the attorney, the nature of the action, and the substance of the judgment demanded, and if a defense lias, been interposed,' the nature of the defense,5 the name and residence of the person to be- examined, and that the testimony of such person is material and necessary for the party making such application, or for the prosecution or defense of such action; and that if the party sought to be examined is a corporation, the affidavit shall state ¿he names of the officers or directors thereof, or any of them whose testimony is necessary and material,, or the books and papers as to the contents of which an examination or inspection is desired, and that the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers. Section' 873 provides that' the judge to whom such an affidavit is presented, must grant an order for the examination.

Buie 82 of the General Buies of Practice provides that the affidavit shall specify the facts, and circumstances which show, -in conformity with subdivision 4 of section 872 of the Code, that the examination of the person is material and necessary. The appellant does not pretend that the affidavit upon which the order in this case was granted, does not , comply with section 872 of the Code and rule 82 of the General Buies of Practice, but it presented to'the court below and to us on this' appeal various reasons why the deposition should not be taken, and we think it proper to again state the rules which govern applications of this kind. The rule that the affidavit must state the facts and circumstances to show that the deposition of the proposed witness is material and necessary .to the party making the application, is intended to prevent an" abuse of the permission to examine an adverse party, so that a party to an action will not be allowed to examine his opponents for an ulterior or improper purpose.

]¡t is tiot an answer to such .an application to say that the party making the application can subpoena the witness sought to be examined on the trial. Bor is a stipulation by a witness or a defendant that such a witness or defendant would appear for trial an answer to such an application. The Code expressly provides "that the deposition is. to be taken either before or during the trial. The object is to obtain testimony of an adverse party before the trial so that' it can be used at the trial. Just what such an adverse party will swear to cannot be ascertained until the deposition is taken, and until the deposition is taken, in a condition to be read at the trial, a party cannot tell whether the evidence of the proposed witness would be sufficient to prove the particular facts desired to be proved, or whether he must procure other evidence of the fact. Nor is it an answer to such an application that the party making it can procure the. evidence from other persons than of the person whose deposition is required. The statute does not require that it shall appear that the fact sought to be proved cannot bé proved by other witnesses, but it authorizes a party to take the deposition of his opponent where his testimony can prove the fact which he desires to establish. Where an issue of fact is presented to be determined upon the trial of the action, and where it appears that a party to the action has knowledge of facts which are material in the determination of that issue, either party to the action under these provisions of the Code is entitled to examine such a party and have his deposition taken for use at the trial.

It is quite useless to attempt to reconcile the opinions in the'various cases that have discussed this question. There are expressions ’ in many of the opinions which are inconsistent with this conclusion, but we think the plain provision of the Code authorizes a party to an action to obtain the evidence of his opponent as to facts which are within his opponent’s knowledge, leaving those questions to be disposed of as to which there is a dispute. The right given by these sections of the Code is subject to abuse, and it is the duty of the court to prevent the abuse of its processes, but where there is no doubt of the good faith of a party to a litigation seeking to establish a fact essential to his cause of action by the testimony of his opponent, I can see no reason why a party is not entitled to have the knowledge of his opponent as to- the fact which he wishes to establish put upon record so that the evidence of that fact would ■ be available to either party to the action when the trial takes place. It is not the duty of a court of justice "to suppress the facts or throw obstacles in the way of either party in establishing the truth, and where a party to the action has presented to a justice of 'the Supreme Court an affidavit complying with section 872 of the Code and the facts and circumstances .are stated which show that the testimony of the person whose deposition is proposed to be taken is material and necessary for the party making the application for the prosecution or defense of the action, there is no reason why the examination should not be allowed and the evidence preserved in such a form as to be available to either party upon the1 trial of. the action.' . - .

•There is no question of laches upon such an application. .. By the amendment of the Code madé in 1904 the-deposition may be taken at any -time before or during the trial, and-this, I suppose, means :just what it says and the deposition may be taken at any time before- or during the trial.. ..

The order appealed from should be affirmed, with ten dollars costs and disbursements. _ - . :

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred,

Order affirmed, with ten dollars costs and disbursements.  