
    BELL against RICHMOND.
    
      Supreme Court, First District; General Term,
    
    
      April, 1868.
    Examination of Parties.—When Ordered.
    
      As a general rule, an issue must have been joined, before a party to an action can procure an. examination of an adverse party.
    The case of McVickar v. Ketchum (1 Ante, 452),—disapproved.
    Appeal from an order denying a motion to vacate a summons to the plaintiff to submit to an examination before trial.
    The defendant in this action, on March 3,1868, applied to Mr. Justice Ingraham for a summons directed to the plaintiff, Jared W. Bell, requiring him to appear before him on the 16th of March, then instant, “to be examined as a party before trial on behalf of the defendant.” Such a summons was issued, and duly served upon the said plaintiff, who appeared, and moved to vacate the summons on the ground that the same was “irregularly issued.” Such motion was made upon his affidavit, by which it appeared that no papers or proofs were used on the application for the summons, and that the action was for goods sold and delivered and work and labor, —and that, at the time summons was issued,, issue had not been joined. . The justice denied the motion, and overruled the plaintiff’s objections, and ordered the examination to proceed. From this order this appeal was taken.
    
      Samuel G. Crooks and H. Y. Cummins, for the appellants.
    I. The application was made under section 391 of the code of procedure,—which provides for the examination of a party to an action at the instance of an adverse party “at any time before trial.” The clear meaning of the section is that before such an examination shall take place there shall be something “to try” between the parties, i. e., an issue. It was not the intention of the framers of this section to afford through its provisions a means for discovery. Neither was it designed to afford to the party an unlimited examination in form or in substance.
    II. It is submitted that even if the examination may be had before issue is joined, at all events some record is necessary upon which to base the summons, i. e., to enable the officer issuing the summons to know that the facts exist authorizing an examination of the party.' No facts were presented to the officer in this case on the part of the defendants. It did not even appear that an action had been commenced or was pending in this court.
    III. The practice in such cases was settled in this court in I860 at general term, in the case of Norton v. Abbot (28 How. Pr., 388).
    
      G. A. Seixas, for the respondent.
   By the Court.—Cardozo, J.

The question presented for our consideration-is whether a party can be examined as a witness under section 391 of the Code, before issue joined. I think the issue should be joined before the examination is had, unless a case is made, which is not pretended in this instance, justifying an order for the taking of the testimony de bene esse. The only reported decision in which a different view has been taken is McVickar v. Ketchum (1 Abb. Pr. N. S., 452), in which'the general term of the superior court (Justices Mouell and McCuhh) held' that the examination might be had at any time after the action was commenced.

But the question did not really properly arise there, for the plaintiff had been obliged by Justice Mohcreie to put in a verified complaint before he permitted the examination.

The theory that the change made in 1863 in section 395 of the code "by striking out at the end of the first sentence the words “ in relation to matters pertinent to the issue,” controls or affects this sentence, is fallacious. That portion of the section stood, "before- the amendment, thus: “A party examined "by an adverse party as in this chapter provided, may be examined on his own behalf, in relation to matters pertinent to the issue.” As amended, it reads, “A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, subject to the same rules of examination as other witnesses.”

The change does not affect this question, for witnesses are always to be examined on matters pertinent to the issue; and the words, “ subject to the same rules of examination as other witnesses,” covers that and other matters. To have used both phrases would been somewhat tautological. The idea expressed in the first was included in the latter. The omission, therefore, furnishes no ground for the argument that the change was to alter the rule which had previously obtained, and which, in fact, never was based upon that section at all. Indeed, that section does not and never did bear, upon the time when &e examination should be had, but only enabled a -party who had. been examined by his adversary to become a witness for himself. At that time, the law did not permit a party to be a witness for himself, but allowed his adversary to call him if he pleased, and the sole purpose of section 395 was to authorize a person called by the opposite party, to be a witness also on his own behalf.

I think there is nothing in section 391 which prevents our requiring that some issue shall exist to try, before the examination which is to be had in lieu of an examination at the trial, shall be allowed; and as no practice has been authoritatively established upon the subject, and as much injustice might be done by permitting a general, unrestricted, roving examination of a party, as it must be, if allowed before the issue is framed, and as there is no necessity for any such rule being adopted, I think we may properly hold the true construction of the. section to be the one I have given to it.

The order appealed from should be reversed. 
      
       Present, Barnard, P. J., and Ingraham and Cardozo, JJ.
     