
    N. Y. SUPERIOR COURT.
    Daniel De Leon agt. David A. De Lima.
    
      Examination of party before trial—When order for, should not be granted— Code of Civil Procedure, section 870.
    An order should not he granted to examine a defendant before trial, in a suit for damages for alleged slander, to obtain knowledge or information of the exact language used by him in disseminating a charge that plaintiff had participated in a scheme of blackmail against defendant.
    To entitle a party to an examination of a defendant it must appear that plaintiff has a cause of action against the defendant. Such examination will not be allowed for the purpose of informing plaintiff whether he has such a cause of action or not.
    
      Special Term, January, 1884.
    Motion to vacate order for the examination of the defendant, sought for the purpose of framing the complaint.
    
      Frederick R. Coudert, for motion.
    
      Beno Loewy, opposed.
   Ingraham, J.

— This action is brought to recover damages for alleged slander.

The object of the examination, as stated in the affidavit on which the order was granted, is to obtain knowledge or information of the exact language used by defendant in disseminating a charge that plaintiff had participated in a scheme of blackmail against the defendant. The sole object of the examination is therefore to compel the defendant to testify as to his guilt of the offense charged.

In considering the provisions of the Code allowing the examination of a party before trial, it has been held that such proceedings are a substitute for a bill of discovery under the former practice, which was abolished by the Code of Procedure, and the rules adopted by the courts in an action for a discovery have been applied to such proceedings (Glenny agt. Stedwell, 64 N. Y., 120).

In Bailey agt. Dean (5 Barb., 297) it was held that a party should not be compelled to disclose facts to enable a plaintiff to sustain an action- for slander. I have been unable to discover any cause in which this rule has been departed from, and it was substantially followed in Phœnix agt. Dupuy (7 Daly, 238). There is another objection to the affidavit on which the order was granted that is also fatal to the order.

To entitle a party to an examination under this provision, it must appear that plaintiff has a cause of action against the defendant. Such an examination will not be allowed for the purpose of informing plaintiff whether he has such a cause of action or not. A fishing excursion was never allowed.

Here plaintiff’s only allegation that would go to show that defendant had slandered the plaintiff was the statement of Inspector Byrnes that defendant had charged plaintiff with being participant in the scheme, and that suspicion rested on plaintiff because, as defendant had informed the inspector, plaintiff had refused to go to the park when he wanted plaintiff to go, and that defendant and family broke off intercourse with plaintiff.

The only statement that it is alleged the defendant - has made was that plaintiff would not go to the park, and it can hardly be said that such a statement was slanderous.

I do not think that there is any cause of -action shown, nor do I think that on such a statement plaintiff should be allowed to compel the defendant to spread on the record- every word that he uttered to his family and the police officers, under circumstances detailed in the affidavit.

Motion to vacate .order for the examination of defendants granted.  