
    DAVID LEVY, et al., Plaintiffs and Respondents, v. SOLOMON LOEB, et al., Defendants and Appellants.
    I. Practice.
    
    1. EXAMINATION OF PARTY TO ACTION BEFORE TRIAL. (a) Obdeb fob.
    1. Obligatory on judge to grant.
    
      Of) Vacatur of order, power of court as to.
    1. Although it is obligatory to grant an order for examination upon presentation of an affidavit complying in form with the requirements of section 872, yet the order, when granted,, may be vacated for cause shown.
    
    1. Cause, what is. If the affidavit on which the order was obtained is defective in any necessary particular, or if the allegations contained therein, though sufficient by themselves, are successfully met by opposing proof, cause for a vacatur is shown.
    (a) Winston v. English, 44 Sow. Pr. 898. The rules laid down in this case may still be followed with safety.
    II. Application of above principles.
    
    1. After service of a complaint setting forth a good cause of action with sufficient certainty, but before answer, plaintiffs, upon an affidavit setting forth various facts which, might perhaps, have been sufficient to call for an examination in case a general denial had been interposed, bnt not claiming that plaintiffs desired to amend their complaint, and that the examination was material and necessary for that purpose, the claim being, simply, that it was material and necessary for the prosecution of the action, obtained an order for the examination of two of the defendants. Those defendants moved to vacate the order upon the papers on which it had been obtained, and on an affidavit showing that prior to the commencement of this action, the defendants had brought an action against the present plaintiffs, that in that action the present plaintiffs had set up by answer the cause of action now sued upon, had procured an order for the examination of the defendants, had actually examined one of them at considerable length, on presumably the same issues as will arise in the present case, and that said examination had been finished and closed.
    
      Held,
    
    
      sufficient cause for a vacatur had been shown.
    
    1. Proof of case tjpon default.
    1. A claim that if defendants should fail to answer, the examination of some of them would be necessary to enable the plaintiff to obtain judgment on application to the court, held, under the circumstances, to be of too speculative a character to uphold the order.
    
    III. System of practice, of what constituted,
    1. The code of civil procedure.
    2. TJnrepealed portions of the old code.
    3. Statutes not embraced in either.
    4. Bules and practice of the courts preserved by section 469 of the old code, so far as they are not inconsistent with later legislative enactments.
    1. Construction of any particular section, or part of the
    SYSTEM.
    
      (a) If it be intricate, obscure or doubtful, its meaning is to be ascertained by compa/ring it with the other sections or parts in the light of the general legislative intent disclosed by the whole system with respect to the section or part questioned.
    Before Speir and Freedman, JJ.
    
      Decided November 4, 1878.
    Appeal from order denying defendant’s motion to vacate an order for the examination of several of the defendants after service of summons and complaint, and before issue joined.
    The motion was founded on affidavit, and it was denied solely on the ground that the code of civil procedure gives an absolute right to such examination, or, in other words, that there is no power to vacate the order.
    
      Mann & Parsons, attorneys, and Will. Mann, of counsel, for appellants
    I. Outside of the provisions of the code peculiarly applicable to this subject, all courts of record have power to control, modify, and vacate their orders or mandates, or to stay their operation. If the court finds that ány order has been obtained from it by misrepresentation, or suppression of material facts, or for purposes of oppression or vexation, the court will so control or direct its order as to prevent its doing harm to the adverse party. The statement of this principle is its sufficient argument.
    II. Is there anything in the Code of Procedure as how in force limiting the general power thus possessed by the court to vacate its own order ? Section 873 provides that upon such affidavit the judge must grant an order, &c. The wording of this section leaves no room for doubt that it is obligatory on the officer to grant the order. The only provision in regard to the mode of .examination is contained in section 880. “The judge taking the deposition must insert therein every answer or declaration of the person examined, which either party requires to be inserted.” The language of this section is very peculiar. If does not require the insertion of question and answer, but only of the answers. This part of the statute has not been altered from the old or former code. The provision there was (§ 392) that the party should be compelled to attend in the same manner as a witness to be examined conditionally, “ and the examination shall be taken and filed by the judge in a like manner.” The former provision, as tp taking the testimony of a witness conditionally, and which is referred to by this last quoted section, is found in the Revised Statutes, 2 Edmonds, p. 415, § 37, and is identical with the first part of- the present § 880. The compilers of the present code have simply taken the old § 37 of the act in regard to perpetuating testimony, and made a section of the code out of it. Consequently the rule laid down by the present code for conducting the examination is precisely (verbatim) the same as formerly. Under the old rule, it was always held that the officer taking the deposition had power to rule on questions asked the witness (party), as to their materiality, competency, &c. (Plato v. Kelly, 16 Abb. Pr. 188; Gibson v. Pearsall, 1 E. D. Smith, 90 ; Glenney v. Stedwell, 64 N. Y. 120), delivering the unanimous opinion of the court of appeals, after stating that the examination before trial is a substitute for the bill of discovery, says : “ It is for the judges now, by rules of practice and by ruling at the examination, to keep the plaintiff (meaning party) within proper bounds, and to ward off from the defendant all inquiry that is vain or curious.” It appears, therefore, that the only, provision on this matter that has been affected by the new code is the making the granting merely of the order obligatory. The reason, for this change is, very apparent. It is well known that one of the courts has always, refused the order to.examine unless the moving papers made out such a case as would have entitled the party to relief in equity on a bill of discovery. An instance of this ruling was the decision at special term of the common pleas in Garrison v. Mariposa Co., not reported, but cited in Carr v. Great Western Ins. Co., 3 Daly, 160, and the then rule of the court of common pleas, rule 21, of Jan., 1871. It was to abrogate this ruling and practice in that court, mid any similar ruling in other courts, that the present language in regard to granting the order was enacted, so as to make uniform the practice in the different courts as to the applicant’s technical right to have the order made. When the order is made and the witness comes into court, then the proceeding is before the court for its control, and the examination of the witness is to be conducted exactly as heretofore, that is to say, as laid down in Glenney v. Stedwell, supra. But again, it was absolutely necessary that the control of the examination should be left with the court, for if the ■court had no power to control, and it was obligatory to take the examination as well as in the first instance to make the order, then the attorney may take out as many successive orders against the same witness (party) as he chooses, and have each time the same examination taken, certified, and filed, to the great oppression of his adversary (See also note to Phenix v. Dupuy, 2 Abb. N. C. 159.
    III. We submit that this is a case where all the' circumstances (the counsel had before particularly adverted to them) show that the order for examination was obtained only for purposes of vexation and oppression ; that the examination, if permitted to proceed, would be, in the words of the court of appeals, “ vain and that the order of the special term should be reversed, with costs, and the order for examination vacated.
    
      8. Kaufman, attorney, and Lewis Sanders, of counsel, for respondent:
    I. This court will not try the merits of an action upon an ex parte affidavit of counsel when not o»ne of the allegations of the complaint is denied, and no añidavit of merits is interposed. Por the purposes of the motion every allegation of the complaint must be taken to be true.
    II. Section 873, code civil procedure, provides that “the judge, to whom such affidavit is presented, must grant an order for the examination, if an action is pending.” The language is in the imperative mood— there are no qualifications or conditions. In the opinion of the learned judge below, the right is absolute. So held by the supreme court (Webster v. Stockwell, 3 Abb. N. C. 120).
    III. If the word may had been used instead of must in the statute, the result would have been the same. It would still have been obligatory upon the judge to grant the order, as the rights of the parties depend upon such examination (Mayor v. Fruze, 3 Hill, 615). “ May, in the case of a public officer, is tantamount to shall; and if he does not do it (the act required), he shall be punished” (King v. Inhabitants of Derby, Skinner, 370 ; King v. Barlow, 2 Salk. 609 ; People v. Sup. Otsego Co., 51 N. Y. 406-7 ; Martin v. Mayor of Brooklyn, 5 Cow. 547; Alderman Blackwell’s Case, 1 Vernon, 153 ; Phelps v. Hawley, 52 N. Y. 27).
    IY. If such is the rule of law when the statute is permissive only, a fortiori, must it be mandatory when the most apt word in the language says that it must be done ?
    Y. This court at general term having passed upon this question where the statute was not, as now, in the imperative mood—it is stai e decisis here.
   By the Court.—Freed max, J.

Prior to the recent revision of the statutes, this court had steadily adhered to the view that the right of a party to an action to examine the adverse party did not, under the code as it then stood, arise after issxie joined, but that it existed from the time of the commencement of the action (McVickar v. Greenleaf, 4 Robt. 657 ; Fullerton v. Gaylord, 7 Id. 551; Duffy v. Lynch, 36 How. Pr. 509), and that this right could not be abrogated by rule (Glenney v. Stedwell and the World Mutual Life Ins. Co., 40 N. Y. Superior Court R. [8 J. & S.] 92).

Other tribunals differed more or less with this court upon this question, but the court of appeals on affirming the case last mentioned (64 N. Y. 120), settled the law in conformity with the views of this court.

At the same time this court considered it but just, and even necessary for the protection of the party to be examined, that the papers supporting the application should fully establish, by facts and circumstances, the good faith of the application and the materiality of the examination sought and if they were deficient in that respect, the application was denied, or the order, if inadvertently granted, vacated pursuant to order to show cause. Thus, in Winston v. English. 35 N. Y. Superior Court R. (3 J. & S.) 512, an order made for the examination of the plaintiff before service of the complaint was set aside because the examination could not, at that stage of the proceedings, be said to be necessary. It could not be said to be necessary to enable the defendant to prepare his answer, for, until the complaint was served, he could not know what the alleged cause of action was or would be, nor what he would have to answer; nor could it be seen that it was material in aid of a defense, until an issue had been framed.

After the complaint had been served, the defendant obtained a new order, but that was again vacated on the ground that the defendant had not sufficiently shown the necessity of the examination, nor sufficiently satisfied the court of the good faith of his application. The rule was stated as follows :

“ Whenever, therefore, a party applies, under section 391, after issue joined, for the examination of the adverse party as to matters within the issues, the application is usually granted as a matter of course and of absolute right. In such case slight evidence is sufficient to satisfy the court as to the materiality of the discovery sought.

“ But when the examination is sought at an earlier stage, where the danger of abuse is imminent, and the difficulty of restricting the examination within reasonable limits great, the court is bound to ascertain by evidence, not only that the examination is material, and how it is material, but also that it is made in good faith, and for a necessary and proper purpose.

“If all this is shown affirmatively, the examination is a matter of right, but otherwise not” (Winston v. English, 44 How. Pr. 398).

These views also found support in the court of appeals, for, in delivering the unanimous opinion of that court in Glenney v. Stedwell, 64 N. Y. 120, Mr. Justice Folger, after stating that the examination before trial is a substitute for the bill of discovery, says: “It is for the judges now, by rules of practice, and by rulings at the examination, to keep the plaintiff (meaning party) within proper bounds, and to ward off from the defendant (meaning adverse party), all inquiry that is vain or curious.”

In enacting the Code of Civil Procedure, the legislature attempted to provide, by express provisions, for the exercise of the right of examination.

By section 870, the right is given at any time before trial, as prescribed in the article of which that section forms a part. Section 872 prescribes the requisites of the affidavit to be presented by the party applying for the examination.

Section 873 provides that the judge to whom such an affidavit is presented, must grant an order for the examination a,t a time and place to be therein specified.

Section '876 provides, that npon proof by affidavit, that service of a copy of the order, and of the affidavit has been duly made, as directed in the order, the judge or the referee must proceed to take the deposition of the witness at the time and place specified in the order. He may, from time to time, adjourn the examination to another day, and to another place, within the same county.

By section 880, the judge or referee taking .a deposition is required to insert therein every answer or declaration of the person examined, which either party requires to be inserted.

Under section 881, the deposition, or a certified copy thereof, may be read in evidence by either party, at the trial of, or upon the assessment of damages, by writ of inquiry, or upon a reference, or otherwise, in the action specified in the original affidavit, or any other action thereafter brought, between the same parties, or between any parties claiming under them, or either of them, &c. &c.

Other provisions not necessary to be mentioned here regulate the service and the enforcement of the order, the manner in which the deposition is to be taken, completed, certified, and filed, and its use and effect.

Upon the provisions specially referred to, it has been contended that upon the mere presentation of an affidavit complying in form with the requirements of section 873, the right to the examination is absolute, if an action is pending; that in such case the judge to whom the affidavit is presented, must grant the order, and that the order, when once made, cannot be vacated for cause assigned by the party to be examined.

If this were so, the order for the examination would amount to a general, irrevocable, statutory search warrant, which can be demanded as matter of right.

I cannot subscribe to such a construction. True, section 873 makes it obligatory on the judge to grant the order upon the presentation of an affidavit complying in form with, the requirements of section 873, and to this extent, the new code makes an important innovation. But when fhe order has been made, and the party to be examined comes into court, then the proceedings must necessarily be subject to judicial control. If it were otherwise, if neither the judge nor the court have power to vacate for cause shown, if it were just as obligatory to take and complete the examination, as it is to grant the order in the first instance, then a party may take out as many successive orders against his adversary as he chooses, and have each time the same examination taken, certified, and filed, to the great oppression of his adversary; or a plaintiff in an action in which there are fifty defendants, may be examined as to the same matters by each of the fifty defendants. For the same reason, it would follow that the examination can be compelled in an action for divorce on the ground of adultery for the purpose of extorting a confession, and that in all actions in which the defendant has so far been privileged from answering, his conscience may now be scraped until he does criminate himself; for the section which prescribes the requisites of the affidavit makes no distinction in terms as to the class of actions to which the right of examination is to be confined, nor does the article containing the provisions under examination provide at what stage of the proceedings, or in what manner, a witness may assert the privilege accorded to him by other statutes. On the contrary, section 880, as already stated, provides that the judge taking the deposition must insert therein every answer or declaration of the person examined, which either party requires to be inserted.

It cannot be assumed, therefore, that the revisers intended to work the deplorable results which would flow from this helpless condition of the tribunals charged with the administration of justice. There is nothing in their notes showing any such intent. Their intention seems to have been to consolidate the provisions of law relating to the examination of a party by an adverse party ; the taking of depositions conditionally ; the perpetuation of testimony, and the taking of depositions by consent; and in carrying out this intention, their principal aim seems to have been to provide one mode of taking depositions in all these cases, and to remove unnecessary differences.

True, the power to vacate is not to be found among the provisions relating to these depositions. But the same objection might have been made to the provisions of the old code by which the right of examination was conferred, and yet the power existed, and its existence was never questioned.

Sections 877 and 878 of the Code of Remedial Justice, which preceded the New York Code of Civil Procedure for a short period, did provide for an application by any party to vacate the order, but on certain specified grounds only. In the discussions, however, to which said code gave rise, these grounds were deemed too narrow to allow an equitable discretion to be exercised, and hence, by the amendments of 1877, these restraints on the power of the court to vacate, were abolished by the repeal of the said two sections.

The truth is, that sections 870 to 886 of the Code of Civil Procedure constitute but a small part of a system of practice furnished by (1) the Code of Civil Procedure; (2) the unrepealed portions of the Old Code; (3) statutes not embraced in either, and (4) the rules and practice of the courts preserved by section 469 of the Old Code, so far as they are not inconsistent with later legislative enactments.

This system of practice must be considered and treated as one intended to be consistent throughout, and hence, if any section or part be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections or parts in the light of the general legislative intent disclosed by the whole system with respect to the intricate, obscure or doubtful point. Where there is clear and unambiguous evidence, says Mr. Justice Colebidob, that to withdraw, a case from the operation of a section, is to fulfill the general intent of a statute, and also, that to adhere tó the literal interpretation is to decide inconsistently with other and overruling provisions of the same statute, the dourt may properly act upon it, for the object of all rules of construction is to ascertain the meaning of the language used, and it would be unreasonable to impute to the legislature inconsistent intents upon the same general subject-matter. What it has clearly said in one part, must be the best evidence of what it has intended to say in the other. The court must apply in such á case the same rules which it would use in construing the limitation of a deed ; it must look to the whole context and endeavor to give -effect to all the provisions, enlarging or restraining, if need be, for that purpose, the literal interpretation of any particular part.

So it was held, that when the meaning of any particular section or clause in the cónstitution is questioned, it is proper to look into other parts of the constitution ; otherwise the different sections might be so construed as to be repugnant to each other, and the intention of the makers might be defeated; and if upon the examination of the general meaning and objects of the constitution, it should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act (6 Cranch, 307).

When, therefore, évery part of this vast system of practice is brought into action, in order to collect from the whole the consistent sense of the particular sections now under examination, it will appear, not only that the power which inheres in every court of record, unless restrained by positive enactment, to vacate, on motion, its process, order or judgment, to prevent a perversion thereof, or to frustrate oppression (Morgan v. Holladay, 38 N. Y. Superior Ct. R. [6 J. & S.] 117), has not been impaired by the Code of Civil Procedure, but also, that section 773, which forms part of a title treating of motions and orders generally, and making general provisions for the same, confers the power to vacate an order in express terms. Under that section an order, in an action, made without notice, which grants a provisional remedy, can be vacated only in the mode especially prescribed by law, and in any other ease, it may be vacated or modified without notice by the judge who made it, or upon notice, by him or by the court. The examination of a party before trial not .being a provisional remedy within the meaning of that term as used in said section, the words in “any other case,” which are used without any qualification whatever, clearly embrace an order made for such examination. Sections 873 and 876 must therefore be construed in connection with the general grant of power conferred by section 773 in confirmation of the power inherently possessed by the court, and in the light of the former practice of the courts, and when thus construed, all doubts as to the existence of the power to vacate must vanish. The examifiation must proceed if no motion be made to vacate the order, or the motion to vacate be denied. But the direction to proceed is not inconsistent with the exercise, for cause shown, of the power to vacate. This fully coincides with the general policy of the legislature upoh the subject of these examinations, for while, as shown in Winston English, 44 How. Pr. 398, the, legislature, representing the progressive power of the State, from time to time extended the right of discovery to new classes of cases and provided new remedies for securing it, it constantly looked to the courts as the representative power of the conservative element, for the prevention of the abuse of the letter of the law in individual cases.

The question then remains as to where and in what cases and under what circumstances the power to v&cate is to be exercised. Section -872 applies to all depositions which may be taken und$r the title of which it forms a part, whether of parties or witnesses, and it prescribes generally the requisites of the affidavit to be •presented by the party desiring to take a 'deposition. In addition, the effect of the 89th rule of the General Rules of Practice enacted pursuant to the authority conferred by section 17 of the Code of Civil Procedure, is that the affidavit must in all cases specify the facts and circumstances which show the materiality and necessity of the examination.

If, therefore, the affidavit on which an order has been obtained is shown to be deficient in any necessary particular, the order may be vacated. The same result may take place if the allegations of the affidavit, though, sufficient by themselves, are successfully met by opposing proof. No precise rule can be laid down for all cases likely to arise. Each application to vacate must be determined upon the facts as they are made to appear. But so far as rules can- be stated, the rules laid, down in the case of Winston v. English, above referred to, may still be followed with safety.

The case at bar affords a striking illustration of the necessity of the exercise of the power. The plaintiffs, before the defendants’ time to answer or appear had expired, obtained, upon their complaint and an affidavit, an order for the examination of two of the defendants. The complaint alleged a good cause of action with sufficient certainty, and the affidavit accompanying it, though alleging various facts, which, perhaps, would have justified the order in case the defendants had interposed a general denial, did not claim that the plaintiffs desired to amend their pleading, and that the examination sought was material and necessary to enable them to do so, but simply claimed that it was material and necessary for the plaintiffs in the prosecution of the action. But it is difficult to perceive how, at that stage of the case, it could be in fact material and necessary for the purpose alleged. No issue had been joined, and as long as it could not be seen what the issue would be, it could not be determined what the prosecution of the action required. Nor did the plaintiffs disclose any reason showing a special requirement. The defendants summoned showed, on the other hand, by affidavit, that some time prior to the commencement of this action the defendants had brought an action in the supreme court against the present plaintiffs; that in that action the present plaintiffs had set up by answer the cause of action now sued upon, and had procured an order for the examination of the defendants, and had actually examined one of them at considerable length on presumably the same issues as will arise in the present case, and that said examination had been finished and closed. This proof rendered it all the more necessary that the plaintiff should show affirmatively some clear and valid reason for proceeding with the examination in this action, but they failed to give any. The claim to which they finally resorted, that if the defendants should fail to answer, the examination of some of them would be necessary to enable the plaintiffs to obtain judgment on application to -the court, is of too speculative a character.

The order appealed from should be reversed with costs, and defendants’ motion to vacate the order for examination granted.

Speir, J., concurred.  