
    JOHN C. ROBERTS, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.
    
      Order for examination of plaintiff before answer under section 872 of the Code, what must appear in the motion papers.—Vacation of order within the discretion of the court in all cases.
    
    The affidavits upon which the motion or application is based, under section 872 of the Code, must set forth the nature of the defence. This implies the existence of a defence to the knowledge or information of the defendant, and the nature of such defence must be set forth, as also the further statement that by reason of defendant’s ignorance of sufficient particulars in relation thereto he is not able to plead it properly, etc., etc. It is impossible to set forth the nature of the defence when it is not known to defendant or upon some information he believes that there is a defence to the action and is able to state the same.
    The form of the affidavit in the case at bar is, that defendant and his counsel have no means of ascertaining “ the particulars wherein the said representations (the subject of the action) were false,” except from the examination of plaintiff before answer.
    Obviously there can be no knowledge or information that the representations were false in general, because any knowledge or information must relate to particulars. The whole of the affidavit, taken together, shows that the defendant does not know and is not informed, in general or particular, that false representations or pretences were made, or what was their nature. Hence defendant is ignorant of the existence of a defence and, therefore, its nature cannot be and is not set forth as required by the Code, and the order should be vacated.
    
      Held, that when all the matters aimed at by the proposed order are (as in the present case) such as call for an examination as to the commission of a crime, or as to something that is a link in the chain of proof of the commission of a crime, the judge should vacate the order, under the discretion given to him, on the application of the party whose examination is sought. The exercise of such discretion is analogous to the rule upon hearing a demurrer to a bill in chancery for the discovery of testimony. If the bill disclosed that the interrogatories contained therein called for evidence tending to convict the defendant of crime, the demurrer was sustained.
    
      Held also, that, in every case, the vacation of such an order is within the discretion of the court.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided March 4, 1890.
    Appeal by defendant from an order vacating an order for the examination of plaintiff before answer.
    
      Ddancéy Nicoll, attorney and of counsel, for appellant, on the question considered, argued :—
    I. Even if the plaintiff could refuse to answer every possible question on the ground that to answer would tend to criminate him, he could only plead that privilege after being sworn as a witness. Greenleaf on Evidence, Vol. 1, p. 501; Corbet v. DeComeau, 54 How. 506; Corbet v. DeComeau, 5 Abb. N. C. 169; Judah v. Lane, 12 N. Y. St. Rep., 130, 131-2; Code of Civil Procedure, §§ 837, 880; Greismann v. Dreyfus, 4 Civ. Pro. Rep. 32.
    II. No privilege has at any time been pleaded by or claimed for the plaintiff, and therefore the special term erred in vacating the order for examination on the ground that he was entitled to such privilege.
    III. The defendant cannot plead justification in general terms ; the rules governing the pleading of that defence “ require in the answer the same detailed and specific information that a perfect bill of particulars would contain.” Therefore, the examination in this case is necessary; Orvis v. Dana, 1 Abb. N. C. 268, 286-7; Wachter v. Quenzer, 29 N. Y. 551-2.
    IY. If defendant is compelled to plead generally, the inevitable result will be to exclude all proof of its defence of justification upon the trial; Tilton v, 
      Beecher, 59 N. Y. 176, 183; Orvis v. Dana, 1 Abb. N. C. 268, 286-7.
    
      George Finch, attorney and of counsel, for respondent, on the question considered, argued :—
    I. The affidavit upon which the original order was granted shows that the defendant is in possession of sufficient facts and information to frame its answer. The libel is specific and gives name, dates and other particulars of the offences charged against the plaintiff, and an answer setting up the truth of those facts would not be demurrable. Where the libel is general the answer should be specific, but where the libel is specific, an answer setting up the truth of the statements claimed to be libellous is not demurrable, although it may be open to a motion to make it more definite and certain. Van Wyck v. Aspinwall, 17 N. Y. 190 ; Wachter v. Quenzer, 29 Ib. 547.
    II. The answer may set up the truth of the statements complained of as libellous, on information and belief, and that would be sufficient answer. Strakosch v. Press Publishing Co., 17 N. Y. Civ. Proc. R. 209; Kinney v. Roberts, 26 Hun, 166.
    III. When it appears from the affidavits upon which the examination is asked, that the only facts and circumstances, as to which the defendant desires to examine the plaintiff, are such as would tend to show that the plaintiff was guilty of a crime, the effect of the examination would only be to compel the plaintiff to appear on the record as pleading his privilege, and the order should not be granted. Kinney v. Roberts, supra; Mechanical Orguinette Co. v. Haynes, 19 Weekly Dig. 535; Brandon Mfg. Co. v. Bridgman, 14 Hun, 122 ; Phœnix v. Dupuy, 2 Abb. N. C. 146.
    IV. The examination should not be allowed to enable the defendant to procure evidence to justify the libel or in mitigation of damages as the facts and circumstances to be available for that purpose must have been known to and believed by defendant when the libel was published. Kinney v. Roberts, supra; Strakosch v. Press Pub. Co., supra; Cooper v. Barber, 24 Wend. 105 ; Hatfield v. Lasher, 81 N. Y. 246; Bush v. Prosser, 11 Ib. 347.
   ' By the Court.—Sedgwick, Ch. J.

In my judgment the papers on which the order for examination was made, did not show what, under the Code, it is necessary to show to support such an order.

Under séction 872 Code Civil Procedure the affidavit must set forth the nature of the defence. This implies that a defence exists to the knowledge or information of the defendant, but that by reason of his ignorance of sufficient particulars he is not able to plead it properly. It is not possible, truly, to set forth the nature of a defence when it is not known or upon some information believed that there is a defence.

The affidavit contains the following : “ The nature of the defence which the defendant has and intends to set up is a defence of justification by pleading and proving that the plaintiff did attempt to take from the possession of several owners of property, and to obtain from such possession by color and aid of fraudulent and false representations or pretences, the sum of $5 from each of them. I verily believe that in order to entitle the defendant to prove its defence of justification, as aforesaid, it is necessary that it should plead the same particularly in its answer and should state particularly the names of the persons who were swindled by the said Roberts, as aforesaid, the representations which Roberts made to induce them severally to part with their property, and the particulars wherein said representations were false, together with the names of the persons who conspired with said Roberts to commit said crime of petty larceny. None of these' things are known to me or to the defendant, and the defendant has no means of ascertaining the same, except from the examination of the plaintiff before answer.”

This admits that the defendant does hot know whether the representations were false. Yet, that is an essential matter. If the defendant has no information as to the falsity of the pretences, he can have no belief that there is a defence. The form of the affidavit is, that he has no means of ascertaining “ the particulars wherein said representations were false;” obviously there can be no knowledge of or information that the representations were false in general. Any knowledge or information on that subject must relate to particulars.

The whole of the affidavit, taken together, shows that the defendant does not know and is not informed in general or particular that pretences were made or what was their nature.

The substance of the matter is, that the. defendant is ignorant of the existence of a defence. Its nature, therefore, cannot be set out. If, through the examination of the plaintiff, he could learn certain things, then for the first he would be able, sufficiently, to say what the nature of the defence was. At present he cannot presume that that examination will show that he has a defence, the nature of which he can now competently set out.

It is also true, for like reasons, that it does not appear that the examination of the plaintiff is necessary to the defendant’sframing an answer. It is not necessary until it is first assumed that there is some defence in fact, as to which the plaintiff can give the particulars necessary to be known for the purposes of pleading.

It does not seem that the section in question was passed for the purpose of enabling a defendant to ascertain whether or not he had a defence, when at the time he cannot affirm that one exists according to his knowledge or information.

The granting of such an order was, in my opinion, within the discretion of the court. Section 873 declares, that “where the person to be examined is a party to a pending action, the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined.” This describes the duty of the judge to exclude from the examination, certain matters in his discretion. As the exclusion must necessarily be based upon the opinion of the judge as to the nature of the matter excluded, rather than upon the nature of the matter permitted, I am of opinion that the judge may properly refuse to allow any examination where the whole of it is intended to be directed to matters which the judge would exclude in a case where he might allow examination as to some matters.

Where all the matters aimed at by the proposed order are, as in the present case, such as would call for an examination as to the commission of a crime, or as to something that is a link in the chain of the proof of a commission of a crime, the judge should set aside the order, under the discretion given to him, on the application of the party.

This would be in analogy to the rule upon heaping a demurrer to a bill in chancery for the discovery of testimony. If the bill disclosed that the interrogations contained in it would call for evidence tending to convict the defendant of crime, the demurrer was sustained. The right that the defendant had to be privileged from answering such questions was accorded to him then. It was not postponed to the time of answering to see whether or not he should claim his privilege in the answer.

I further think that, apart from the particular clause that has just been referred to, it is in every such case within the discretion of the court to set aside an order of this kind, and for the reason that such an examination will not produce a result beneficial to the party. Hardly anything can be more improbable, when it is foreseen with certainty that the plaintiff may exercise a right to refuse to answer, and especially when he sets up his right a short time before the examination is to take place that the plaintiff would waive that right and prove for the benefit of the defendant that lie has committed a crime. The counsel and the judge know that an examination would be useless and in vain. I am sure that actual experience confirms that.

The order should be affirmed with $10 costs.

Freedman and Ingraham, JJ., concurred.  