
    GREEN a. WOOD.
    
      New York Superior Court; General Term,
    
      March, 1858.
    Examination of adverse Party before Trial:
    'The examination of an adverse party before trial, provided for by section -391 of the Code, is a matter of right, if claimed by a party.*
    An order refusing such an examination is appealable.
    Whether the discretion given to the judge by the latter clause of section 391 extends to any thing more than the length of notice required,—Query 2 ,Jf the judge has discretion to refuse the examination before trial, for good cause shown, it is not good cause for such refusal that the party, sought to be examined, prefers to testify at the trial, and offers to stipulate that he will then attend for that purpose.
    * It has been held that these provisions of the statutes do not authorize the ■ examination of a party on questions arising on a motion preliminary or collateral to the issue in the action, Huelin a. Bidder (Ante, 19).
    There are several eases which hold that these provisions are not applicable to .actions between husband and wife. (Consult Pillow a. Bushnell, 6 Barb., 156 ; .Arborgast a. Arborgast, 8 How. Pr. B.., 297 ; Smith a. Smith, 15 lb., 165; Sweet «a. Sweet, 15 lb., 169 ; and see 170.) '
    
    
      Appeal from an order discharging ah order for the examination of the defendant before trial.
    This action was for assault and battery. The answer was a. denial. There were eleven other actions pending against the same defendant, brought by different parties, but all involving-the same facts. This cause being at'issue, the plaintiff obtained an order, under section 391 of the Code, requiring the- . defendant to attend, before one of the justices of the court, and ' be examined before trial.
    On the return-day the defendant appeared before Mr. JusticePierrepont, and offering to stipulate to attend at the trial and be examined as a witness, moved that the order for the examination before trial be discharged.
    G. Dean, for the motion,
    urged that the examination required, by the order was unnecessary to the plaintiff and inconvenient' to the defendant, and that the court had, under the last clause-of section 391, full discretion to allow or refuse the examination..
    
      D. D. Field, opposed,
    contended that the statute was imperative as to the allowance of the examination, and that the discretion given to the court was only in respect to time and place;. but that if requiring the examination was discretionary, this-case was a proper one for requiring it. -
    Pierrepont, J. (orally). My view of - this statute is, that it is-left, and was intended to be, in the discretion of the judge, whether he would compel such an examination or not; and if' that were left doubtful by section 391 of the statute, I should-think the recent act (which allows the parties to be examined, on their own behalf) would strengthen this view. The sole object of such an examination must be to get the thing fairly before the jury. There cannot be any other good object. Mow,, if there are twelve suits (as it is admitted), then each party has-a perfect right to examine the defendant on each suit. If the. plaintiff in this action can examine him, the plaintiff in every-other action can; and if I decide that one plaintiff can" examine him to-day, and another should come up to-morrow with-a, like motion, it seems to me that such a decision would make it; necessary to have him examined again ; for, although it might be said he has been already examined, the second plaintiff could reply, with reason, “Yes, but I did not examine him ; I choose to examine him by other counsel; I know facts the other plaintiff was not acquainted with, and I ought not to be prejudiced by his examination.” If so, the defendant might be brought up twelve times and examined at length, and in my judgment it would be oppressive. When they offer to stipulate to be present at the trial to be examined before the jury, I think that is a good reason why he should not be examined here twelve or thirteen times. I shall, therefore, grant the motion discharging the order.
    From the order entered on this decision, the plaintiff appealed to the general term.
    
      D. D. Field, for the appellant.
    —I. The plaintiff has the option of examining the defendant before the trial. That option is his, and not the court’s; and the court cannot take it from him. The qualification in section 391 applies to the time, place, and manner of its exercise, and not to the right itself. (Leeds a. Brown, 5 Abbotts’ Pr. R., 418.)
    II. If the court had, however, a dispensing power, and could release the defendant from the operation of section 391, “ for good cause shown,” yet in this case there is no good cause shown for not examining the defendant. The rule established by the Code is, that the plaintiff has a right to examine the defendant before the trial. This was introduced because the discovery, which could in most cases be obtained by a bill in chancery, was abolished, and a more searching and comprehensive substitute provided. The defendant must undoubtedly show that he comes within a just exception.
    1. The fact that there are eleven other actions pending for other outrages perpetrated on the same occasion, upon eleven other persons, so° far from diminishing, really increases the propriety of examining the defendant. After he has been once examined, if the court can relieve him from a further examination, they may then do so with far more propriety than they can do it now. 2. The defendant’s stipulation to attend at the trial and be examined as a witness is not “ a good cause shown.” If it be, a defendant can always relieve himself from an examination by offering a stipulation, and the statute will be repealed.
    3. The purpose of the statute was, not to make sure of the defendant’s testimony at the trial, but to make sure of it before the trial. If the former had been the purpose, the conditional examination provided by section 390 would have been sufficient.
    4. The stipulation does not afford any equivalent to a present examination. Suppose the defendant does not attend, and is out of the State: what is the plaintiff to do % Is he to postpone his case until the defendant returns ? The court cannot render-judgment against him for his non-attendance; and if they could, they could not by any possibility award to the plaintiff such an amount of damages as he might, perhaps, obtain with the aid of the defendant’s testimony.
    
      Gilbert Deem, for the respondents.
    —I. If the construction given by Judge Pierrepont to section 391 of the Code is correct, then this appeal will be dismissed; because the order, resting in the discretion of the officer who made it, is not appealable. (Code, § 369 ; Seely v. Chittenden, 10 Barb., 303.)
    II. The order is not appealable, in any aspect of the case, under section 349. It does not affect a provisional remedy. It neither grants nor refuses a new trial, nor sustains or overrules a demurrer. It does not involve the merits of the action. It does not affect a substantial right. Bo decision of a judge refusing to admit cumulative evidence merely will be held erroneous, nor could any decision as to the order of proof or the convenience of parties or witnesses.
    III. The provision of section 391, as to the order to be made, “ on good cause shown,” by the judge, relates to the examination, and not to the length of notice of the time and place of examination. 1. The term “ otherwise” relates to manner and not to time. 2. If “ otherwise” relates to the notice only, then it may “ on good cause shown” be dispensed with entirely. 3. The whole proviso is for the benefit of both parties, and allows every party to the action to show cause why the examination should be had at the trial or before it.
    IV. Sections 390, 391, and 392 were designed to place an adverse party in the same situation in respect to the right of the opposite party to examine him as any other witness.
    
      Y. The discretion of the justice who made this order was • wisely exercised. Should the court hold the section to render it obligatory on the justice to issue the order, there is nothing to prevent the defendant being subjected to a dozen lengthy prior examinations. The object of the section was merely to get the full evidence before the jury. As the defendant had stipulated to be present on the trial, this object would be attained without this examination.
   By the Court.

Bosworth, J. Section 390 of the Code gives to either party to an action the right to compel the other party to be examined, and to testify as a witness either at the trial, or conditionally, or upon commission. This statutory provision existed before the Code was enacted: that was not passed until April 12,1848, and took effect on the following first day of July (Laws o/1848, 497 and 565, §391, and 559, §345). The first section of the act of December 12,1847, gave to either . party the same right to examine the other, and in as clear terms as the Code (2 Laws of 1847, 630, eh. 462). That act creates the right to examine either party at the trial, and provides the means of enforcing its exercise (§§ 1 and 2). The right to so examine at the trial was absolute, as much so as the right of either party to examine any third person as a witness. When the Code was enacted, section 345 (Laws of 1848, 559, § 345, now section 391 of the Code) was superadded to the provisions tif chapter 462 of the Laws of 1847. That section provides that “ the examination, instead of being had at the trial, may be had at any time before the trial, at the option of the party claiming it.” Thus far the language of section 391 imports that either party has his election either to examine his adversary at the trial or before the trial. The right to examine at the trial is absolute; and the right given by section 391, to examine before, instead of examining at the trial, stopping with the portion of the section already quoted, would seem to be equally absolute. The commissioners, in their report to the Legislature, advising this addition to the then existing law, and alluding to the act of 1847, said : “ That act, however, contemplates the examination at the trial only; we think it important to extend it, so as to permit the examination to take place before the trial, at the option of either party.” They further observed that “ one of the great benefits to be expected from the examination of the parties is, the relief it will afford to the rest of the community in exempting them, to a considerable degree, from attendance as witnesses to prove facts which the parties respectively know, and ought never to dispute, and would not dispute if put to their oaths. To effect this object, it would seem necessary to permit the examination beforehand, that the admission of the party may save the necessity of a witness.” (Chichester v. Livingston, 3 Sandf., 718, 719.)

This shows clearly an intention to make an examination prior to tire trial a matter of right, as the general rule. Section 391 of the Code further declares that this examination may be had “before a judge of the court, or a county judge, on a previous notice to the party to be examined, and to any other adverse party, of at least five days, unless, for good cause shown, the judge otherwise order.” The words “ unless for good cause shown, the judge otherwise order,” whether construed to confer power to compel a party to submit to an examination on a notice less than five days, or to give him a longer period to prepare to be examined, or to defer it until the trial, would affect only the question of the time of the examination.

Whenever and wherever he may testify, he is to- be examined, and is to testify, subject to the same rules of examination, as any other witness (§ 390). It has been intimated in an opinion of the late Hr. Justice Sandford, that on cause shown a party might be required to submit to an examination on a notice short of five days (Taggard a. Gardner, 2 Sandf., 668, 669). He also-held that an examination before the trial was designed to aid parties in preparing for trial, irrespective of the residence of the party to be examined, or the probability of his being able to attend the trial (Partin a. Elliott, 2 Ib., 668).

We think it a just construction of section 391 that either party has an absolute right to examine the other party before " the trial, unless some other cause is shown against it than a willingness of the latter to be examined at the trial, coupled with the highest moral certainty that he will attend at the trial, * so that he can then be examined. A different construction would make it optional with the party sought to be examined, whether he would submit to be examined before tidal or not; the Code gives the option to the party claiming a right to examine the other. It is not therefore necessary to. decide, in order to dispose of this appeal, that cause might not be' shown which would justify the judge in postponing the examination to the trial, and that this section does not confer power in such a case to so order.

In the present case, no cause is shown against submitting to an examination before the trial, except that the defendant prefers to be examined at the tidal, and will stipulate to attend, so that he can be then examined; and the further fact, that eleven other parties have brought similar actions growing out of the same transaction. It is not obvious why any one plaintiff should be denied the right to have an examination before the trial, because other persons have brought actions against the same defendant, which are yet pending, and depend upon the same state of facts. His examination on the trial of one action would not at all affect the necessity of examining him in behalf of the plaintiffs in every one of the eleven other actions. A plaintiff may be unable to make out a case except by the testimony of the defendant; an examination of him before the trial may produce the conviction that a recovery is impossible, and lead to a discontinuance of the action without a trial." (Cockle a. Underwood, 3 Duer, 676, 679, S. C., 1 Abbotts’ Pr. R., 1.)

Presumptively, a defendant cannot be examined more advantageously to himself at the trial than before the trial. When examined before the trial, the examination, like the trial, is, in this court, before a judge of the court; it is taken deliberately, and is reduced to writing; and the party examined may, as well as at the trial, testify in his own behalf, in respect to any matter pertinent to the issue. (Code, § 395.) The examination so taken may be read in his own behalf, whether the other party offers to read it or not. The examination before the trial being, as the general rule, a matter of right, an order refusing to permit it to be had, affects a substantial right, and is appealable.

The goodness of the cause shown against it, and which may be held sufficient to exempt a party from testifying before the trial, is at least so far examinable on appeal from such an order, that if it be nothing else than the fact of a purpose to attend at the trial, and a willingness, to be then examined, it should be held not enough to satisfy the requirements of section 391 of the Code; for unless other and good cause he shown, the Code is imperative that an examination of either party, at the option of the other, may be had before the trial.

We think no “good cause” was shown for not submitting to an examination in this action; and that none being shown, it was the right of the plaintiff to be permitted to examine the defendant, and that the order appealed from must be reversed. 
      
       Present, Bosworth, Hoffman, Woodruff, and Pierrepont, JJ.
     
      
       In the case of Garighe a. Losche (New York Superior Court; At Chambers, October, 1857), an application was made upon affidavit for an order for the examination of the plaintiff before trial. The order asked for, among other things,, directed the plaintiff to produce certain books and papers, or show cause why he should not prdduce them.
      
        Mr. Bryan, for the application.
      'Hoffman, J.—It is not the proper practice to make an order in such cases. The notice, specifying the time and place of the examination, and naming the judge before whom it is to be had, is sufficient without an order.
      Section 392 provides that the party to be examined, as in the last section provided, shall be compelled to attend in the same manner as a witness who is to be examined conditionally. And it appears to be considered as necessary that a •summons should be issued by the judge, such as was issued under the Bevised Statutes, upon a conditional examination (2 Rev. Stats., 393, § 10). The form of .such a summons is to be found in the Appendix, to Burrill’s Practice (3 Burr. Pr., 482). Section 391 of the Code seems also to refer to such a proceeding, providing that the party shall only be compelled to attend in the county of his residence, or where he may he served with a summons for his attendance.
      Mr. Justice Roosevelt, in Bleecker v. Carroll (2 Abbotts’ Pr. R., 82), decides that a, subpoena is not proper, but a summons is the proper course, which is defined in the statute to be “a requisition under the hand of the judge or officer issuing the same.’’ (See also Jarvis v. Clerk, 12 N. Y. Leg. Obs., 129.) Both the notice, then, under section 391, and the summons under the Bevised Statutes, appear necessary, at least, to lay the ground for a punishment or process.
      In relation to the proceedings against a party, it may be noticed that section 392 prescribes that to obtain attendance the course shall be such as in the case of a witness examined conditionally. Section 54 of the Bevised Statutes (2 Rev. Stats.] 401) directs the mode of serving a summons ; section 55 prescribes a liability to damages and a forfeiture of $50, and section 56 authorizes the issuing of a warrant to the sheriff by the judge or officer to bring the, witness up to be examined, in case of his failure to attend. Section 57 provides for the case of his refusing to answer. Other sections relate to the form and nature of the warrant.
      Section 394 of the Code, however, provides that if the party refuse to attend and testify, he may be punished as for a contempt, and his complaint, answer, or reply may be stricken out.
      Thus, then, if the applicant finds it most important to have the actual examination, he may procure the attendance by the' warrant under the statute ; if he is content with the remedy given by section 394, he may adopt that, and.. no doubt proceed as for the contempt, and also have the pleading stricken out, or1 have either of these modes of redress. The general statute as to contempts (2 Rev. Stats., 535, § 1, subd. 5) covers the case of persons summoned as witnesses, and refusing to obey the summons, or to be examined.
      The counsel has made it part of the order which he submits, that the party produce certain books, &c., relating to the matters in question. I apprehend that-the course in such a case is by the subpoena duces tecum. (Jarvis v. Clerk, 12 N. Y. Leg. Obs., 129.)
      The following summons was signed by the judge.
      Title of the Cause.
      By M. H., a justice of the Superior Court, you, B. G., are hereby Summoned to appear and attend before me, at the special term (Chambers) of the Superior Court of the city of New York, at the City Hall in said city, on Monday, the 12th day of October instant, at 10 o’clock in the forenoon of that day, to be examined as a witness, and to give testimony pursuant to the provisions of the statute entitled “ Of taking conditionally the testimony of witnesses without this State,” and to the 390th and 391st sections of the Code of Procedure, at the. instance of the defendant, in a cause pending in the said court between you the said B. Gh, as plaintiff, and P. A. L., as defendant; and in case of your refusal or failure to attend and testify, you will be liable to be punished as for a contempt, and your complaint may be stricken out.
      Witness my hand this 6th day of October, in the year one thousand eight hundred and fifty-seven. . M. H.,
      A Justice of the Superior Court of the City of New York.
      'As to the remedy of the party claiming the examination, for the neglect or refusal of the adverse party to attend, see Leeds a. Brown (5 Abbotts’ Pr. R., 418), in which case Mr. Justice Roosevelt, to some extent, qualified the opinion he had expressed in Bleecker a. Carroll, supra.
      
     