Sweeney v. Sturgis , 31 N.Y. Sup. Ct. 162 ( 1881 )

Gilbeet, J.:

One of tbe issues in this case arises upon tbe denial in tbe answer of every allegation in tbe complaint not admitted by the answer. Tbe allegation in tbe complaint that “ the defendant was tbe proprietor of tbe Eagle Mill,” is one of those which tbe answer thus puts in issue. That tbe fact co averred by the plaintiff and denied by- tbe defendant is material, and indeed indispensable to be proved on tbe trial, is incontrovertible. The plaintiff clearly has a right to establish such fact by tbe testimony of tbe defendant. (Code Civ. Proc., § 82S.) That being so, he is entitled to examine tbe defendant for that purpose upon or before the trial, provided be complies with the prerequisites prescribed by law. (Id., § 870.) It is no doubt tbe duty of tbe judge to determine that the affidavit presented upon an application for an order for tbe examination of a party before trial, contains all tbe facts which tbe Code arid Rule 89 of 1877 (Rule 83 of 1880) require to be stated therein, before granting tbe order for such examination. But if tbe affidavit be sufficient it is the duty of the judge to grant the order. Tbe power thus vested in the judge is for tbe promotion of justice, and in a proper case suitors may insist on the exercise of it as a matter of right. A strict grammatical construction of ,the Code gives such right, tbe language being “ tbe judge must grant an order,” etc. It flows also from tbe principle of tbe common law, tbat when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application. (Macdougall v. Paterson, 11 C. B., 755; People ex rel. Otsego Co. Bank v. Sup. of Otsego Co., 51 N. Y., 406, and cases cited.)

Some of the adjudged eases contain expressions of judges which at first blush might be deemed inconsistent with the rule stated, e. g., that “the examination is not a matter of absolute right,” that “the order for it ought not to be granted for inquisitorial purposes,” whatever that may mean; that “ the application must be made in good faith; ” that “ when made after issue joined it must be made to obtain-testimony to be used on the trial,” etc., etc. But in truth there is no inconsistency whatever. The expressions. ref erred to were used in reference to applications wherein the affidavit did not conform to the legal requirement, or in reference .to motions at Special Term to vacate the order for the examination. In either of these cases such expressions are perfectly correct, for an affidavit which falls short of the legal requirement creates no right, and when the right exists, but an abuse of it is shown by affidavit, an order for the examination of a party may no doubt be vacated by the court, after due notice of a motion for that purpose. But we think that when a sufficient affidavit is presented the judge is not justified in refusing the application, unless the affidavit also shows that the party is privileged from giving the testimony sought. The provisions of the Code on this subject have taken the place of the practice of the Court of Chancery relative to bills of discovery. (Glenney v. Stedwell, 64 N. Y., 120.) A cardinal rule of such practice was that the defendant must answer to all facts material to the plaintiff’s case. He was not bound to answer questions of law, nor was he bound to answer questions of fact, unless material not only to the issue but to the plaintiff’s case, for the plaintiff had no right to harass him with idle or impertinent inquiries. On grounds of general policy also, a party was not required to discover matters which would tend to criminate him or to expose him to a penalty or forfeiture, or privileged communications. Subject to such exceptions the law required a defendant to discover the truth of the plaintiff’s claim. (Adams’ Eq. Oh. 1.) I know of no better test to apply in cases of this kind than that which governed the determination of demurrers to bills of discovery under the practice of the Court of Chancery.

In the case before us the affidavit shows that the examination is sought for the purpose among others of proving what interest the defendant has in the Eagle Mill. As before stated, such proof is material and necessary, for without it the action cannot be maintained. The defendant must know what interest he has in the mill, and no good reason for excusing him from disclosing that fact has been shown. A denial in his answer that he is the proprietor of the mill certainly does not excuse or disqualify him from testifying on that subject. He may still be called and examined upen, that subject on the trial of the action as a witness in behalf of the plaintiff, and we think that the right of the plaintiff to have such an examination before, the trial is equally clear. The effect of the testimony may be to disprove the plaintiff’s case. Nevertheless he has a right to examine the defendant, for it cannot be foretold what his testimony will be. A denial in a pleading affords no exemption to the party who made the denial from being examined as a witness to prove the fact denied, for it is the denial only which renders such proof necessary.

"W"e think that it was proper to require the defendant to attend before one of the justices of the city of New York. (Code C. P., § 886.)

The order appealed from must be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurred.