
    LUDEWIG v. PARISER.
    
      N. Y. Superior Court; Special Term,
    
    
      March, 1878.
    Examination of Parties before Trial.—Requisites of Affidavit.—Order.—Judicial Legislation.—Code of Civ. Pro. §§ 870, 872, 873, 880.
    An affidavit to obtain an order for the examination of parties defendant before trial, which sets forth the names and residences of all the parties to the action, and that the defendants have not appeared, the nature of the action, the substance of the cause of action, the names and residences of the persons to be examined, that their testimony is material and necessary, and that they are parties to the action, contains all the requisites necessary under section 872 of the Code of Civil Procedure.
    
    
      The provisions of sections 873, 873 and 880 of the Code of Civil Procedure, deprive the court of any discretion in regard to the examination of parties to suits by them, as parties, and make such examination a matter of absolute right.
    
      The inconvenience, impolicy, hardship or injustice of a law affords no warrant for its abrogation by the judiciary.
    Motion to vacate an order fof the examination of parties defendant before trial.
    This was an action by Gustav Ludewig against Eva Pariser and Henry J. Welsh to recover possession of certain personal property.
    The motion was made upon the following affidavit: [Title of the cause.]
    
    
      [Venue.]
    
    “Gustav Ludewig, being duly sworn, says that he is the plaintiff herein. That this action was commenced on the 28th day of January, 1878, to recover the possession of certain personal property from the defendants above named, and the immediate delivery thereof to this deponent is demanded in and by said action.
    “Deponent further says, that under and in pursuance of proceedings had for the immediate delivery of the personal property claimed in this action to this deponent, the sheriff of the city and county of New York has taken from the possession of defendants certain articles, to wit. [Two billiard tables, and so on, enumerating the articles.]
    
    “Deponent further says, that the defendants have still in their possession, as he verily believes, the other articles claimed in these proceedings and in this action by him from them, and this deponent says that the defendants are keeping same hidden and concealed in order to keep the same out of this deponent’s possession, and to defeat the object of this action.
    “That the summons, affidavit and undertaking herein have been served on both of the defendants herein, but neither of them have as yet appeared.
    “That deponent resides at No. 110 Bleecker street, in the city of New York.
    
      “That the defendant Eva Pariser resides at No. 13 Stuyvesant place, New York city, and the defendant Henry J. Welsh does business at No 104 Thompson street, in the city of New York, and resides at 343 East One Hundred and Twenty-eighth street, in the city of New York.
    “Deponent desires to examine the defendant Eva Pariser and the defendant Henry J. Welsh as to and concerning the articles claimed by the plaintiff herein, and which articles are particularly set out in the affidavit and papers served upon said defendants and each of them with the summons.
    “That the testimony of the defendants and each of them is material and necessary for the plaintiff in the prosecution of this action.
    “That plaintiff expects to prove by the defendants and each of them, that the property claimed by this plaintiff was removed by them from the premises No. 353 Bowery, in the city of New York; the whereabouts now of said' property mentioned; its value; and such other matters as are pertinent to the maintenance of this action.
    “Deponent further says that the sheriff of the city and county of New York is unable to secure said property or discover where the same now is, nor what disposal has been made thereof, and deponent desires to examine the defendants above named and each of them for the purpose of discovering and unearthing the same.”
    
      [Jurat.] [Signature.]
    
    Upon this affidavit the following order was granted:
    “On the annexed affidavit of Gustav Ludewig, plaintiff herein and verified on the 4th day of February, 1878. Ordered, that you, Eva Pariser and Henry J. Welsh, in said affidavit named, appear and each of you do appear before me, one of the justices of the superior court of the city of New York at the chambers of the justices thereof at the court-house in the city of New York, on Wednesday, the 13th day of February, 1878, at ten o’clock in the forenoon of that day, and be examined, and submit to an examination, and make depositions in the above action, concerning the matters set out in the affidavit of the plaintiff concerning which your testimony is sought by the plaintiff in this action. Let a copy of this order and affidavit be served on the said Eva Pariser and Henry J. Welsh not less than five days before the 13th day of February, 1878.”
    Dated
    
      [.Signature of the judge.]’
    
    
      Robert H. Pollock, for plaintiff.
    
      Goff & Pollock, for defendant.
    
      
       In Simmonds v. Hudson (County Court, Kings County; January, 1878), it was held, that the affidavit to obtain an order for examination of a defendant before trial, "under section 872 of Code of Civ. Pro., must set forth the facts and circumstances which show that such examination is material and necessary. The affidavit of plaintiff’s attorney that he believes such examination necessary, is not sufficient. The application must be dismissed unless the affidavit is such as is required by Rule 89.
      motion to dismiss application to examine a defendant before trial.
      This action was brought by James Simmonds against George Hudson for goods alleged to have been sold and delivered.
      The defendant pleaded a general denial.
      On an affidavit of the plaintiff’s attorney, containing the material allegations in the complaint, and the following, viz.: 11 Deponent verily believes that it is necessary to examine the defendant, who resides in the city of Brooklyn, as a party before trial, to enable the plaintiff to prove that the defendant is indebted to the plaintiff as alleged in his complaint. Deponent desires to examine defendant before trial as to all and every of the material allegations in the complaint and answer, and deems it necessary so to do in advance of the trial, for the purpose of obtaining admission of facts in issue. Deponent is informed and verily believes that the defendant’s attorney is a resident of the city of Brooklyn.”
      An order was obtained for the examination of the defendant.
      Thereupon the defendant moved upon the plaintiff’s papers to dismiss the same, because:
      
        First. The affidavit upon which the order was made did not conform to the requirements of section 872 of the Code, and supreme court Rule 89, in not setting forth the facts and circumstances which show that the examination of defendant before trial is material and necessary.
      
        iSecond. The belief of counsel is not such a fact or circumstance as enables the court to determine whether the examination be “necessary.”
      
        Third. The judge must dismiss the application if “such affidavit ” as is required by Rule 89 be not produced. Code, § 873.
      
        
        Thomas E. Pearsall, for plaintifE.
      
        B. M. Chittenden, for defendant.
      Henry A. Moore, County Judge, granted the motion to dismiss, without costs.
      In Montague v. Worstell (If. 7. Marine Court; Chambers, Eébruan'y, 1878), it was held,, that a party to an action cannot, under the Code of Civil Procedure, be examined before trial for the purpose of perpetuating his testimony.
      Application for an order to perpetuate the testimony of a party.
      This action was brought by William L. Montague against John P. Worstell. The cause being at issue, defendant’s attorney moved on affidavits, setting forth the serious illness of the defendant and the probability of its resulting in his death, for the usual order under the statute to perpetuate the testimony of the defendant.
      
        E. E. Marbwry, Jr., for plaintiff.
      
        M. M. Budlong, for defendant.
      McAdam, J.—The defendant, who is sick and infirm, fears that he will in consequence be unable to attend the trial, and therefore makes application through his counsel for an order to take his examination as a witness upon his own behalf, conditionally, before trial.
      The materiality of the evidence is shown, and all of the statutory requirements have been complied with (3 B. 8. 6th Ed. p. 653), and I would willingly make the order were it not for the fact that the statutory provision in question has been expressly repealed by the act of 1877 (chap. 417, § 3), and the case is not embraced in any provision of the new Code of Civil Procedure (§ 873, subd. 5), because the person to be examined is a party to the action.
      The application will therefore be denied, without costs.
      Compare section 870 as amended in 1878 to read as follows:
      “The deposition of a party to an action pending in a court of record or of a person who expects to be a party to an action • about to be brought in such a court other than a court specified in subdivisions sixteenth, seventeenth, eighteenth or nineteenth of section two of this act may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial as prescribed in this article.”
    
   Sanford, J.

The affidavit upon which the order for the examination of the defendants was made sets forth the names and residences of all the parties to the action, and that the defendants have not appeared; the nature of the action, the substance of the cause of action, the names and residences of the persons to be examined; that the testimony of such persons is material and necessary to the prosecution of the action, and that the persons to be examined are parties to the action. These are all the requisites to the affidavit which, under the provisions of section 872 of the Code of Civil Procedure, must be presented to the judge by a person desiring to take the deposition of his adversary in a pending action. By section 873 the judge to whom such an affidavit is presented must grant an order for the examination if an action is pending. And by section 880 the judge or referee taking the deposition must insert therein every answer or declaration of the person examined which either party requires to be inserted. I am of opinion that these broad and sweeping provisions of law deprive the court of any discretion in regard to the examination of parties to suits by them, as parties, and make such examination a matter of absolute right. The argument ab inconvenienti is most forcible against allowing such an invasion of long-established rights and usages ; but the inconvenience, the impolicy, the hardship and injustice of a law afford no warrant for its abrogation by the judiciary. The remedy.is in the legislature and not. in the courts. The motion to vacate the order must be denied and the examination must proceed.  