
    HAVEMEYER against INGERSOLL.
    
      Snpreme Court, First District;
    
    
      Special Term, October, 1871
    Examination of Pabties.—Motions.
    The court will not determine that a statute on which the plaintiff’s right to maintain the action depends, is unconstitutional, upon the hearing of a motion on affidavits. •
    
      It seems, that an examination of the adverse party, and a discovery and inspection of his books and papers, cannot be had in one proceeding; and the provisions of section 388 of the Code relating to the latter object, cannot be invoked to sustain an order for the former object.
    Under Buie 31 of 1871, the court may grant an order for the examination of defendant, to enable plaintiff to prepare his complaint.*
    It is competent for the judges in convention to make rules altering the practice previously settled by decisions of the courts.
    * .To similar effect, is Hadley v. Fowler, Ante, p. 344.
    Order to show cause cause why an order for defendant’ s examination should not be vacated.
    This cause was entitled as follows:
    
      “ William "F. Havemeyer, a resident of the city of New York, and assessed to pay taxes therein, and who pays taxes therein, who sues for himself and all others similarly situated, plaintiff, against James H. Ingersoll, the mayor, aldermen and commonalty of the city of New York, and the board of supervisors of the county of New York, defendants.”
    The summons was for relief. The plaintiff applied to the court upon the summons and his own affidavit, for an. order requiring defendant to appear and be examined. The allegations of the affidavit were as follows :
    “William F. Havemeyer, of said city, being duly sworn, says that he is plaintiff in above-entitled action. That said action has been commenced by the service of a summons on the defendant Ingersoll, and by attempts, so far in vain, to serve the same on the other defendants. That in order to prepare the complaint herein properly, correctly, and advisedly, as deponent is advised by his counsel, it is essential that the plaintiff should have an examination of the defendant Ingergersoll, under section 391 of the Code of Procedure, and, also, the production, upon such examination, of the defendant Ingeroll’s books of account.
    “That deponent brings this action in the capacity stated in the above caption, for. the purpose of recovering, or having recovered from the defendant Ingersoll, for the benefit of the citizens and tax-payers of the city and county of New York, nearly six millions of dollars, which deponent is informed and believes said Ingersoll, during the years 1869 and 1870, fraudulently obtained and received from and out of the public treasury of said city and county of New York, and which the other defendants, as deponent is informed and believes, willfully and collusively, neglect and omit to take any steps to recover back.
    “ Said Ingersoll, as deponent is informed and believes, obtained and received such moneys, the precise amount whereof deponent is not aware, but at least five million dollars, and the precise amount whereof can be obtained from the said Ingersoll and from his books, if produced, under the sham and pretense of furnishing or having furnished said' city and county with furniture for the courts of the county to the amount of nearly one million five hundred thousand dollars, whereas, in fact and reality, as deponent is informed and believes, the value of all the furniture in the county court house does not exceed one hundred thousand dollars; and, under the further sham and pretense of performing or having performed carpenter and cabinet work for said county courts, to the amount and value of over one million two hundred thousand dollars, whereas, in fact and reality, the value of all carpenter and cabinet work done by or for him in said county court does not, as deponent is informed and believes, exceed one hundred' thousand dollars; and under the further sham and pretense of repairing armories and drill rooms, or of armories and drill rooms having been repaired, at a necessary expense of over one million four hundred thousand dollars, whereas, in fact and reality, as deponent is informed and believes, one hundred thousand dollars’ worth of work has not been done.in making repairs ; and, also, under various other shams and pretenses. That, as deponent is advised, it is impossible, without an examination of said Ingersoll, to get at the exact amount of work done, material supplied, and time necessarily expended, and the exact amount paid therefor; or to ascertain if other furniture has been supplied besides that now in the county court house, when it was supplied, what was its character, whether household or- otherwise, and when it was taken from said court house, or from its place of manufacture. That the same difficulty exists in relation to repairs, materials, carpets, shades, curtains and all such other items as are embraced in the charges for which Ingersoll received the sums aforesaid. That deponent is also informed and believes that said Ingereoll obtained and received such moneys, in manner aforesaid, in combination and collusion with officers of the city and county governments, who shared with him the amounts so fraudulently obtained and received, but that the exact facts as to the names of such persons, the amounts, they so received, and when they so received them, are not in deponent’s possession, and can only be obtained by an examination óf said Ingersoll, and that such examination, as deponent is advised, is essential to a proper preparation of the complaint herein, and to enable deponent to bring in proper and additional parties defendant, and to make the charges definitely, specifically and clearly, as to all concerned.”
    The order was made by a justice of the court, in the following form:
    
      [Title of the cause.}
    
    “ It appearing to me from the affidavit of the plaintiff that an examination of the defendant, Ingersoll, under section 391 of the Code, is necessary to enable the plaintiff properly to prepare the complaint herein, on motion of plaintiff’s attorney, it is ordered that the defendant, James H. Ingersoll, be and appear before me or before such justice of- this court as shall hold the chambers, on October 7, 1871, at ten o’clock of that day, in the chambers of the supreme court, in the new county court house, in the city of Hew York, then and there before me or before the justice holding such chambers, to be examined by the plaintiff herein, touching the matter in this controversy.”
    
      [.Signature and date.}
    
    The defendant, upon the deposition of Richard O’Gorman, corporation counsel, and affidavits of the clerks to the board of supervisors and to the common council respectively, obtained an order to show cause why the order should not be vacated.
    
      William, Fullerton, John H. Strahan and Elihu Root, for the motion.
    
      George O. Barrett, and Miller, Stoutenburgh & Peckham, opposed.
   Ingraham, P. J.

In the case of Foley v. Mayor, &c., Justice Bakxaed decided that the plaintiff had a standing in court, and could maintain the action, as a tax-payer, in behalf of himself and others who should come in as plaintiffs, but did not decide the' question as to the constitutionality of section 3 of the act of 1864, chapter 405.

I concur with him that such question should not be adjudicated on a motion similar to the present, nor should it ever be done on ordinary motions affecting questions of practice, unless it has been passed upon by a court in a more formal manner, or the invalidity of the act is beyond doubt.

The decisiou made by Judge Sutheblaito in the case of Pullman is at variance with the decision of other judges on similar questions, and there should be a decision of the general term before any controlling authority on that subject can be insisted on.. I shall, therefore, on that point, follow the ruling in the case of Foley as more directly in point than any other in this district, and will not pass upon the constitutional question on this motion. Later decisions of the court of appeals have left this question to be a doubtful one ; but, is it proper on a motion arising on questions of practice to inquire whether the plaintiff can or cannot make out a good cause of action, before the complaint is -served, or before it is known upon what grounds the action is based % The attempt on the part of the defendant to show that the plaintiff must fail in his action because he is unable to prove the negligence of the defendants, or any of them, to prosecute for the alleged frauds, may be a good défense on demurrer or on the trial; but whether it be so or not cannot be tried on affidavit. The only question to be inquired into on this motion is a mere question of practice, depending on the construction of sections 388 and 391 of the Code, and on rule 21 of the court. Sections 388 and 391 relate to entirely different subjects and cannot be united together for the purpose of aiding proceedings under either.

Section 388 is intended to provide for the discovery of books or papers in the possession of the opposite party, and section 391 is intended to prescribe the mode of examining a party. The latter is the only section ap plicable to this proceeding. The general term of this district held in Bell v. Richmond (4 Abb. Pr. N. S., 44; S. C., 50 Barb., 571), that such examination could only be had after issue joined, and that decision would control this application, unless the provisions of rule-21 should be considered as altering the practice in this respect. This rule prescribes what the affidavit on which the examination is applied for should contain. In case a discovery is sought to prove his complaint or answer, it must disclose the nature of the discovery, and how it is material therefor ; and in like manner if the object is to prove the case after issue.

It is apparent from the provisions of this rule that the judges, in "framing it, contemplated both cases as properly included in section -391, viz: the right of an examination to frame a pleading or prove the case. The right to examine a party for either purpose, must, therefore, be conceded to be intended in framing this rule, and I am bound by its provisions, as it was made long after the decision in 50 Barb, was promulgated.

The only remaining question, is whether the judges in convention had the power to make such a rule which would be in conflict with the previous decisions of the courts.

The authority for this convention is contained in the act relating to the supreme court (Laws of 1870, p. 947, ch. 408), which provides for the meeting of the judges, and adds: “Such convention shall revise, alter, abolish and make rules, which shall be binding upon all courts of record, so far as they may be applicable to the practice thereof.” There can be but little doubt that this provision is sufficient to give full power .to make such a rule, and to extend the provisions of section 391 to such a case as the present, even if it had previously been limited by the courts to an examination after issue joined. After the Code had provided for the examination of parties before trial, it became a matter of practice to regulate the time and mode of examination. The rule under consideration was intended for that purpose, and is binding on the courts.

This application to examine the defendant must, therefore, be granted.

as the questions are new, and some of them are proper for the consideration of the general term, and as the next general term will be held in a short time, if the defendant wishes to appeal from this order, a stay of proceedings may be had, provided he appeals in season to have the case noticed for the next term.

The examination of the defendant is ordered, and the motion to vacate the order, therefore, is denied.  