Huelin v. Ridner , 6 Abb. Pr. 19 ( 1858 )

Sutherland, J.

I think the examination of a party, either at the trial, or conditionally, or upon commission, or at any time before trial, under sections 390 and 391 of the Code, must be as to matters pertinent, or supposed to be pertinent, to the trial of the action, and that those sections of the Code do not authorize the examination of the adverse party, in a motion to vacate an order of arrest, or any other mere motion preliminary or collateral to the issue.

By section 389 of the Code, no examination of a party shall be allowed or be had on behalf of the adverse party, except in the manner prescribed in the Code. By the subsequent sections he can be so examined as a witness only.

I do not think that one who is examined merely as to matters controverted in a motion to vacate an order of arrest, or whose examination is used only in such motion, can he called as a witness.

It follows that the plaintiff is not entitled either to an order or a commission to examine the defendants Bidner & Wachschlager merely in opposition to the defendants’ motion to vacate the order of arrest.

Motion denied.