
    SUPREME COURT.
    Constance A. Andrews, plaintiff and appellant, agt. John D. Prince and others, defendants and respondents.
    
      Examination before trial— Of a party in action resting upon fraud, will not be ordered when this object is to procure testimony to establish such fraud— Code of Oiml Procedu/re, section 880. •
    In actions resting upon fraud, deceit and fraudulent conspiracy, an order for the examination of a party defendant before trial will be vacated when the object of it is to procure testimony to establish the fraud.
    
      First Department, General Term, December, 1883.
    ' Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal from an order vacating-an order for the examination of James R. Keene, one of the defendants, as a party before trial. . .
    
      Harry Wilbur, for appellant.
    
      William G. Choate, for respondent;
   Brady, J.

— This action is one which, under the old system, would be embraced with those designated as actions on tort, and rests upon charges of fraud and deceit for the purpose of obtaining money. The first allegation in the complaint is that the defendants and others unknown to the plaintiff, for the purpose of obtaining money by fraud and deceit, on or about a certain day procured the organization of two companies; and it is further charged that in pursuance of such fraudulent and deceitful purpose the defendants did certain things particularly set out, and, further, that the money received from the plaintiff was received in pursuance of the purpose for which the company was organized and the representations made. The action is, therefore, one which rests entirely upon charges of fraud, deceit and fraudulent conspiracy. It seems to be well settled that in such an action an order for the examination of the party will be vacated when the object of it is to procure testimony to establish the fraud charged. This doctrine rests upon the provisions of the constitution of this state, which declares that no person shall be compelled, in any criminal case, to be a witness against himself. Yamato. Trading Company agt. Brown (decided in this department and reported in 25 Hun, 248) is in point upon the question involved upon this appeal, in which it was decided that when the object of the examination, as already suggested, is to show by the testimony of the party that he procured property from the plaintiff by means of false and fraudulent representations the order for his examination should be vacated (See, also, Kenny agt. Roberts, 26 Hun, 166; Corbett agt. De Comean, 5 Abb. N. C., 169; Burbank agt. Reed, 11 N. Y. Weekly Rig., 576).

The case of the Canada Steamship Company agt. Sinclair Reported in 3 Civil Pro., 285) is not in conflict with the cases referred to. But if it were it would not be regarded as overruling (being a special term ease) the decision of the general term of this department. That case, however, is distinguishable from this, in that it was commenced to recover property or its value, and the object of the examination was to show how much of the property which was stolen from the plaintiffs came into the possession of the defendant.

The court held that the possession of the goods is not of itself a crime. It was necessary if they were bought by the defendants to show that they were purchased with a knowledge of their being stolen. If the proposition was recognized,. as it should have been, that if it appeared that the testimony which the party sought related exclusively to frauds, which amounted to a crime, the order could not be maintained.

For these reasons the order appealed from was properly made and should be sustained.

The judgment of the court is, therefore, that the order appealed be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Daniels, J., concurred.  