Fourth National Bank v. Boynton , 36 N.Y. Sup. Ct. 441 ( 1883 )

Daniels, •!.:

, The action has been brought to recover the amount of two promissory notes made by the defendant and transferred to the plaintiff.

The answer set forth the defense of usury in the preceding transfer of the notes from the defendant to the person receiving them from him, and the examination of the defendant has been sought, “ to establish whether such negotiation was in fact made by the said Follett, and if so, to show what were its terms and circumstances.”

It is very evident from this statement- that the testimony desired to be obtained is not material or necessary lor the prosecution of the action by the plaintiff. The object of the examination, as thus disclosed, is simply to discover the testimony which the defendant may be able to give in support of his defense.

And for that object the provisions of the Code have supplied no authority for his examination at the instance of the plaintiff before trial. For that has been authorized when the application may be made by the plaintiff after issue joined, only to enable the plaintiff to obtain testimony which may be pertinent or useful in the prosecution of the action, by way of making out the case upon the trial. (Code of Civil Pro., § 872, subd. 4.)

This is the reasonable import of the language of the subdivision, and it has been so construed in many’instances by the courts. The case of Chapin v. Thompson (16 Hun, 53) is particularly in point upon this subject, and so is that of Beach v. Mayor (14 Hun, 79).

In the last ease the application received the disapproval of the court, for the reason “ that the object was not to get his testimony to use upon the trial, but to force him by an examination to furnish to the defendants the information necessary to enable them to look up witnesses to be used against him.”

This language is particularly applicable to the present case. For that is disclosed as the practical object of the examination of the defendant by the affidavit on which the order was made, which the court, on motion, vacated. Schepmoes v. Bousson (1 Abb. N. C., 481), Greer v. Allen (15 Hun, 432) and Crooke v. Corbin (23 id., 176) also sustain the same construction of this subdivision of the Code.

The order vacating the previous order requiring the defendant to appear and submit to the examination was right, and it should be affirmed, with ten dollars costs besides disbursements.

Davis, P. <1., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.