
    JOHN J. CORBETT, Plaintiff and Respondent, v. LOUIS DE COMEAU, Defendant and Appellant.
    I. Practice.
    
    1. Examination of party to action before trial.
    
      (a) LIBEL, ACTION FOR.
    1, Defendant cannot be compelled to prove against himself the publication of the alleged libel, or to disclose any matter .constituting a link in the chain of evidence, which may fasten the publication on him.
    
      Therefore, v/nless
    
    plaintiff shows that there are other matters as to which it is necessary and material to have the testimony of defendant before trial, the order for his examination will he vacated.
    
    ' Á fortiori
    Where plaintiff’s papers show that the sole object of the examination is to' prove by defendant that he published or caused to be published the libel, and do not show either that the examination is necessary for the framing of the complaint, or that the publication cannot be proved by other testimony.
    ■3. Rule 89—Requirements oe.
    (a) What does not satisfy them. ' >
    1. A general affidavit “that the testimony of the defendant is material and necessary to plaintiff in the prosecution of his action,” does not,
    Before SpEir and Freedman, JJ.
    
      Decided November 4, 1878.
    Appeal Tby defendant from order denying his motion to vacate an order for Ms examination after service of summons, but before service of the complaint.
    
      Coudert Brothers, attorneys, and of counsel, for appellant.
    I. 1. As to the general right to apply for a vacation of the order. It is elementary law that no order can be granted which may not also be vacated. There was no provision in the old law for an application to vacate the order granted under section 391. And yet the application was constantly made and constantly granted.. 2. Our particular right to apply for a vacation of the order herein. There is no provision in the new law for an application to vacate the order herein, nor was there any such provision expressly enacted under the old law, but the right to make such an application no one will deny.
    II. 1. It is elementary law that a witness cannot be compelled to disclose any matter which may subject him to a penalty, a forfeiture or a criminal proceeding (Henry v. Salina Bank, 1 N. Y. 83; 1 Phil. on Ev. 278 ; Mitf. Plead. 197; 4 Johns. Ch. 432; 3 Paige, 533 ; 11 Wend. 329). Nor to discover any matter constituting evidence or a link in the chain of evidence which might subject him to a penalty, a forfeiture or a criminal proceeding (Henry v. Salina Bank, 1 N. Y. 86 ; Matter of Tappan, 9 How. 364; People v. Maher, 4 Wend. 254; 16 Ves. 242; Parkhurst v. Lawton, 2 Swanst. 215 ; 1 Burr's Trial, 244; Southard v. Rexford, 6 Cow. 254; People v. Bellinger, 8 Wend. 595). The proceedings under the code for obtaining an order for the examination of a party before trial corresponds to the bill of discovery in the old chancery practice (King v. Leighton, 58 N. Y. 383 ; Glenney v. Stedwell, 64 Id. 123). A bill of discovery does not lie to compel a party to discover facts, the effect of which might be to subject him to a penalty, forfeiture or criminal proceeding (Chancery v. Tahourden, August 4, 1742, before Lord Chancellor Hardwicks. See also Earl of Suffolk v. Green, 1 Atk. 450; Hamson v. Southcote, 1 Id. 539 ; Wrotterly v. Bendich, 3 P. W. 238 ; Chauncey v. Fenhoulet, 2 Ves. 265; See also Taylor v. Bruen, 2 Barb. Ch. 301; Conant v. Delafield, 3 Edw. Ch. 201; Sharp v. Sharp, 3 Johns. Ch. 407; Deas v. Harvie, 2 
      Barb. Ch. 448 ; Leggett v. Postley, 2 Paige, 599 ; Currier v. Concord R. R. Co., 48 N. H. 321; Lansing v. Pine, 4 Paige, 639 ; 4 Sim. 263 ; Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297. See also 2 Story’s Eq. Jur., 822, and note; Taylor v. Bruen, 2 Barb. Ch. 301; McIntyre v. Mancius, 16 Johns. 592). The court will not allow an examination to proceed where it is evident that the witness cannot be compelled to answer a single question under it (Norton v. Woods, 5 Paige, 269 ; Burgess v. Smith, 2 Barb. Ch. 276; Dykers v. Wilder, 3 Edw. Ch. 496). “ The defendant cannot be compelled to answer a charge which, if true, will subject him to an indictment or expose him to criminal prosecution. ... In this case there is no material fact alleged to be in the knowledge of the defendant which he could disclose without exposing himself to a prosecution for conspiracy, if the allegations in the complainant’s bill are true” (Leggett v. Postley, 2 Paige Ch. 601 ; Burgess v. Smith, 2 Barb. Ch. 280 ; March v. Davidson, 9 Paige, 587). The last objection we have to meet is the one suggested, rather than expressed by the words “ Such an objection is the personal privilege of the witness.” There are cases which hold that the objection cannot be taken by counsel, but only by the witness himself. Any argument that maybe drawn from these decisions is based upon the confusion which has arisen since parties have been allowed to testify in their own behalf. The rules which limited the privilege of witnesses before the innovation last mentioned, must be carefully examined before they are admitted as limiting the privilege of parties who offer themselves, or, as in this case, are forced upon the stand. It will be seen that in this class of proceedings there is an important distinction between them (See Stake v. Andre, 9 Abb. Pr. 420 ; Palmer v. Adams, 22 How. Pr. 375). A witness, not a party to the action, is not entitled to counsel. The decision, therefore, that counsel cannot object to a question on the ground of the personal privilege, cannot refer to the counsel of the witness, seeing that he was not entitled to one ; it cannot refer to the counsel for the party on whose behalf the witness is being examined, for he is the counsel who puts the question ; it can only refer therefore to the opposite counsel; and the cases distinctly show this. The reason they lay down for the rule is, that one party is not to be shut off from the benefit of the testimony of his witness by a personal objection taken by the counsel for the other side. It was held, Noyes v. Thayer, 3 Hill, 566, that: “The court erred in compelling the witness to answer questions tending to criminate himself. But the error is not available to the plaintiff ; the privilege belongs exclusively to the witness, who may take advantage of it or not, at his pleasure. The party to the suit cannot object. The witness may waive the privilege and testify in spite of any objection coming from the party or his counsel” (See also Ward v. Profer, 6 Hill, 146; People v. Bodine, 1 Den. 566). But a party is entitled to counsel and to all the protection which a counsel can afford. This is recognized in the code by the express provision therein (§ 875), that “a copy of the order and of the affidavit upon which it was granted must be served upon the attorney for each party of the action.” It is an instructive fact that the only proceeding by which a party could be compelled to testify at common law was by the assistance of a bill of discovery, and that a demurrer to this bill was continually taken by counsel on the very grounds upon which we base this argument, and the demurrer was sustained without a single exception.
    
      W. id Severance, attorney, and of counsel, for respondent:
    I. The new code, section 870, et seq., gives every party to a suit the absolute and unqualified right in every case to examine the adverse party before trial, on the presentation of an: affidavit stating certain facts. No distinctions are made in. the kind of actions, or exceptions to the rule. The language is broad, and it is made compulsory, by section 873, on a judge on the presentation of an affidavit, to grant an order if an action is pending; and section 876 is mandatory that he must proceed with the examination on proof of service. The only point really to be considered then, is whether the affidavit was sufficient; as if so, the’ right to the examination, was- absolute, although the right to compel defendant to answer all questions after he was sworn, might not be.
    II. The defendant has laid much stress on the case of Phœnix v. Dupuy (2 Abb. N. C. 146), which was made before the new code went into effect,, and was based on the theory that a bill of discovery would not lie in such a case. It is difficult to see what application a discussion on bills of discovery has to the right of examination under the new code. It may be known to this, court, as it is to the bar of the- city, that the judges of the court of common pleas have allowed very few examinations of parties before trial, and have termed such examinations “fishing excursions,” and “scraping the conscience of- the adverse party,” and that little weight has been given to the decisions of that court on- this subject. The theory of hardship* which has always-been strongly advanced in that court,. and which has there been very efficacious, has been disposed of- a number of tirties (Glenney v. Stedwell, 64 N. Y. 120; Ludewig v. Pariser, decision of Judge Sanford, March 19, 1878).
    III. If Judge Sanboejd had decided that this: examination should not be allowed, on the crimination theory, he would- practically have assumed that, the answers to- all of the questions asked would have a tendency to criminate, and further, that the witness would, claim his privilege and refuse to answer. For all that was known, he might waive his privilege and testify. It has been often decided that the court will only interfere when a witness claims his privilege, and will not instruct him in advance. The privilege is exclusively a personal one (People v. Bodine, 1 Den. 314 ; Fellows v. Wilson, 31 Barb. 163 ; 3 Hill, 566 ; 6 Cow. 260; 6 Hill, 144; Corbett v. De Comeau, opinion in this case ; Ludewig v. Pariser, supra).
    
    IV. The affidavit is sufficient. It follows the statute. The only pretense of an omission that can be suggested, is that it does not state ‘ ‘ the judgment demanded therein.” This, however, evidently refers to a case where a complaint has been served with a demand for judgment, as there could, under the circumstances here, be no “judgment demanded therein.” In a libel action, but one judgment is demanded, to wit: damages. See Beach v. Mayor, supra, where it is held that a substantial compliance is all that is required.
   By the Court.—Freedmah, J.

The existence of the power to vacate an order made for the examination of a party at the instance of the adverse party, has been so fully shown in Levy v. Loeb, decided at the present term of this court, that no further discussion upon that point is necessary here. In so far, therefore, as the denial of the motion was based upon a supposed want of power, it rests upon an erroneous view of the law.

The defendant, on the return day of the order, objected to being sworn, and moved for the vacation of the order, on the ground, among others, that the action being for libel, he could not be compelled to prove against himself the publication of the alleged libel.

The rule that a witness cannot be compelled to disclose any matter which may subject him to a penalty, a forfeiture or a criminal proceeding, nor to disclose any matter constituting a link in the chain of evidence which may subject him to any of these consequences, has not been repealed by the Code of Civil Procedure, but is expressly retained by section 837. But it is the personal privilege of the witness, and ordinarily it can only be urged when a question having that tendency is addressed to him. As a general rule, therefore, the premature assertion of the privilege affords no justification for refusing to be sworn.

On the other hand, it was incumbent on the plaintiff to demonstrate by facts and circumstances the materiality, necessity and good faith of the proposed examination at the particular stage of the case at which it was sought to be taken. When, therefore, the defendant claimed his privilege, the plaintiff should at least have shown that there were material matters as to which the defendant could be examined. The burden of proof upon this point rested upon the plaintiff from the start, especially as, under the former practice, as was also insisted upon by the defendant, no bill of discovery would have been sustained for the purpose sought to be accomplished by the examination (Leggett v. Postley, 2 Paige, 599 ; Marsh v. Davison, 9 Id. 580 ; Bailey v. Dean, 5 Barb. 297 ; Lansing v. Pine, 4 Paige, 639 ; Taylor v. Bruen, 2 Barb. Ch. 301; McIntyre v. Mancius, 16 Johns. 592), and no examination was allowed to proceed where it was evident that the witness could not be compelled to answer a single question under it.

But the affidavit on which the order was granted showed that the sole object of defendant’s examination was to prove, by the latter’s own oath, the publication of a letter libelous on its face in a newspaper, with the design to injure the plaintiff, and no further proof was adduced to overcome defendant’s objection. Moreover, there was no pretense that the examination was material and necessary to enable the plaintiff to frame his complaint, or that the publication could not be proved by other testimony, if such proof should become necessary at a subsequent stage. The mere general averment of the affidavit, “that the testimony of the defendant is material and necessary to plaintiff in the prosecution of this action,” did not meet the requirements of the 89 th rule.

For these defects, and it plainly appearing from the whole case that the object of the plaintiff was not so much to collect proof in aid of an action which he had, as to find out by the examination of the defendant whether he had any against the latter in particular, the motion to vacate should have been granted. To have compelled the defendant to take the oath and then to reassert his privilege, would in this case have been an idle ceremony.

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

Speir, J., concurred.  