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order the defendants appealed, and the order was set aside, the general term holding that if the return was deemed insufficient, a further return, and not a reference, should have been ordered (Hoyt v. Amer. Exchange Bank, 8 How. 89; 1 Duer, 652).
a. Refusing to make discovery.-The code does not authorize an order precluding the defendant from a defense or from controverting certain facts as a penalty for his refusal to make discovery of books and papers, but confines the consequences of such discovery to the exclusion of the documents as evidence and the punishment of the party (Woods v. De Figaniere, 1 Rob. 681; and see Broderick v. Shelton, 18 Abb. 213); as to punishing for contempt in not making discovery see Ackroyd v. Ackroyd, 2 Abb. N. S. 381,
and Rule 16.
b. Inspection.-On an order that one of several defendants should allow the plaintiff, his solicitor or agent, to inspect certain documents in that defendant's custody, that defendant is justified in refusing to allow the inspection in the presence of a codefendant, although he be agent of the plaintiff. If it is desired that the codefendant also have an inspection, the order should so state (Bartley v. Bartley, 22 Law J. R. N. S. Ch. 47; 16 Jur. 1062; 1 Drewry, 233; 17 Eng. Law & Eq. R. 329).
c. On producing books, the party producing them may seal up those parts which do not relate to the matters in issue, and his affidavit that the parts sealed up do not relate to the matters in issue is prima facie sufficient to protect such parts from examination. His affidavit may be rebutted (Titus v. Cortelyou, 1 Barb. 444).
d. Appeal from order.—An order for discovery of books and papers affects a substantial right and is appealable to the general term in the superior court of New York (Woods v. De Figaniere, 25 How. 522; 1 Rob. 681; contra, in the supreme court (White v. Munroe, 33 Barb. 650; 12 Abb. 357). Appeal from order for discovery allowed (Ansen v. Tuska, 19 Abb. 391; Julio v. Ingalls, 17 Abb. 448, note; Walker v. Granite Bank, 44 Barb. 39; 19 Abb. 111; Strong v. Strong, 1 Abb. N. S. 233; Broderick v. Shelton, 18 Abb. 231).
Examination of Parties.
SECTION 389. Action for discovery abolished.
390. A party may examine his adversary as a witness.
391. Such examination also allowed before trial. Proceeding
392. Party, how compelled to attend.
393. Testimony of party may be rebutted.
394. Effect of refusal to testify.
395. Testimony of a party not responsive to the inquiries may be rebutted by the oath of the party calling him.
396. Persons for whom action is brought or defended may be
397. Examination of coplaintiff or codefendant.
§ 389. Action for discovery abolished.
No action to obtain discovery under oath, in aid of the pros
ecution or defense of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter.
$390. A party may examine his adversary as a witness.
A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission.
a. Restriction on party as a witness.—A party to the suit who is made a witness by statute, is to become such under the same requisitions and restrictions as any other witness. He must be of sane mind, of sound memory, of suitable age, willing to be sworn, and capable of taking an oath (Arnold v. Arnold, 13 Verm. 370; see Forward v. Harris, 30 Barb. 338; Burnett v. Harris, 50 Barb. 379; Rivenburg v. Rivenburg, 47 Barb. 419; Ketchum v. Tyson, 3 Murphy's Law & Eq. 314).
b. Attesting witness must be called.-The law which renders the parties to a suit competent and compellable to give evidence, has not altered the rule of law which requires the execution of attested instruments to be proved by the subscribing witness (Whyman v. Gath, 17 Jur. 559; 22 Law J. Rep. (N. S.) Ex. 316; 19 E. L. and E. R. 359; and see Story v. Lovett, 1 E. D. Smith, 153; Jones v. Underwood, 28 Barb. 484; King v. Smith, 21 Barb. 158.)
c. Account-books.-The code has not abrogated the rule of law admitting account-books as evidence in certain cases (Tomlinson v. Borst, 30 Barb. 42; Stroud v. Tilton, 3 Keyes, 139). To render account-books competent evidence, the party must prove that during the period the charges were made, he kept no clerk, that some of the articles charged for were delivered, that the books are his account-books, and that he keeps correct accounts (Tomlinson v. Borst, supra; and see Conklin v. Stamler, supra). The books cannot be discredited by proving the party's general bad character (id.)
d. Perpetuating testimony.-Proceedings under the revised statutes to perpetuate testimony (2 R. Š. 398) may still be resorted to. The dictum to the contrary in Keeler v. Dusenbury (1 Duer, 660), is not followed. On an application to perpetuate testimony it should appear that the application is made in good faith (Paton v. Westervelt, 5 How. 399).
e. Fees for attendance.-When a party to the action is made a wit ness by his adversary, he is entitled to be paid witnesses' fees, as a condition to creating it his duty to attend, and be sworn as one who is not a party to the action (Hewlet v. Brown, 1 Bosw. 655; 7 Abb. 74; Woods v. De Figaniere, 1 Rob. 607; Draper v. Henningsen, 1 Bosw. 614; Taggard v. Gardner, 2 Sand. 669).
f. Production of papers on subpœna duces.—A party to an action may, at the instance of the adverse party, be compelled by the process of subpœna duces tecum, not only to appear at the trial and submit to a personal examination, but to produce books and papers in his possession, precisely as any other witness may be so compelled. And a witness, when properly subpœnaed, is as much bound to produce books and papers in his possession as evidence, as to testify orally; and his neglect of either is a contempt of court (Bonesteel v. Lynde, 8 How. 226; affirmed on appeal at the general term, and see Garighe v. Losche, 6 Abb. 284, note; 14 How. 453; Woods v. De Figaniere, 16 Abb. 159; The People v. Dyckman, 24 How. 222; Brett v. Bucknam, 32 Barb.
a. If a witness on whom a subpœna duces tecum is served, neglects, without good excuse, to obey the subpoena by producing the papers mentioned in the subpoena, he is liable to the aggrieved party for all damages sustained in consequence of such neglect, although the witness in other respects obeys the writ by personally appearing and giving evidence in the cause (Lane v. Cole, 12 Barb. 680).
b. The president or other officer of a corporation which is a party to an action, is not bound to produce on the trial the books and papers of the corporation under a subpaña duces tecum, issued by the adverse party. He has no such property in or control over them as gives the right, or makes it his duty, to produce them. Their proper place is the office in which the business is transacted to which they relate (La Farge v. The La Farge Ins. Co. 14 How. 26).
c. An unincorporated joint stock company is not such a corporation as will enable its officers to refuse to produce its papers in their custody, when required by subpoena (Woods v. De Figaniere, 16 Abb. 159).
$391. (Am'd 1849.) Such examination also allowed before trial. Proceedings therefor.
The examination, instead of being had at the trial, as provided in the last section, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance.
d. As a general rule an examination of an adverse party before trial, cannot be had until after issue joined (Bell v. Richmond, 50 Barb. 571; 4 Abb. N. S. 44, Supreme Court; contra, Superior Court, New York; McVickar v. Greenleaf, 4 Rob. 657; McVickar v. Ketchum, 1 id. 452; Fullerton v. Gaylord, 7 Rob. 522; Duffy v. Lynch, 36 How. 508). On a motion at the proper time and place and in the proper manner, the granting an order for the examination before trial of an adverse party is a matter of right (Cook v. Bidwell, 29 How. 483; Fullerton v. Gaylord, 7 Rob. 552). A refusal of the order may be reviewed on appeal (Green v. Wood, 6 Abb. 277; 15 How. 338).
e. To entitle a party to such an order he must present to a judge of the court in which the action is pending, or to a county judge, an affidavit stating:
1. The nature of the action and the plaintiff's demand.
2. If the application be made by the defendant, the nature of the defense. 3. The name and residence of the party he proposes to examine as a wit
f. Where the application is made by a plaintiff before the complaint is served (see Duffy v. Lynch, 36 How. 509). Upon this the judge will make an order that such party be examined as a witness on a day and at a place named in the order. The day should not be more than twenty days after the date of the order, and may be as much shorter as the judge may direct. The judge will also sign a summons commanding the witness to attend at the time and place named in the order to submit to an examination (see a form, 14 How. 453); perhaps this summons should be sealed with the seal of the court (Whitney v.
Wynkoop, 4 Abb. 374). It is not the practice to seal it. The summons is to be served upon the party to be examined personally in the same manner as a subpœna is required to be served and the like amount of fees paid as upon service of a subpoena. A copy of the order is to be served upon the attorney for each of the parties in the action who have appeared, and if any party has not appeared, or not appeared by attorney, he should be served with a copy of said order personally (Greene v. Herder, 7 Rob. 463; 30 How. 210; Van Rensselaer v. Tubbs, 31 How. 193).
a. The service of the summons must be within the State (Appleton v. Appleton, 50 Barb. 486).
b. The proceeding under the section is exclusively a statutory one (id.) c. The examination.—The limit of the examination is within the discretion of the judge (Plato v. Kelly, 16 Abb. 188). The examination of the adverse party is in effect a cross-examination, and governed by the same rules (id.)
d. Where on an examination before the trial the witness refuses to answer a legal and pertinent question, the judge should issue his warrant for the commitment of the witness, not make an order adjudging him in contempt (The People v. Dyckman, 24 How. 222).
§ 392. (Am'd 1849.) Compelling attendance.
The party to be examined, as in the last section provided, may be compelled to attend, in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial.
e. Compelling attendance.-The attendance of the witness cannot be compelled, except upon a summons (Bleecker v. Carroll, 2 Abb. 82; Draper V. Henningsen, 1 Bosw. 614; Garighe v. Laroche, 14 How. 452; 6 Abb. 284, note); and on payment of his fees as a witness for attending (Taggard v. Gardner, 2 Sand. 669; Draper v. Henningsen, 1 Bosw. 614; see in note to § 391).
f. A party examines his adversary before the trial at his peril, and whatever testimony is taken, without objection, may be read on the trial by either party (Berry v. Galvin, 37 How. 310; Greene v. Herder, 7 Rob. 461).
§ 393. (Am'd 1849.) Rebutting testimony.
The examination of the party, thus taken, may be rebutted by adverse testimony.
g. Contradicting party as a witness.-A party who calls his adversary as a witness, thereby represents him as worthy of credit, and cannot afterwards impeach him by showing either that his general character for truth is bad, or that he has made previous contradictory statements (Pickard v. Collins, 23 Barb. 444). But he may prove a fact to be otherwise than his adversary has testified to (id.; Parsons v. Suydam, 3 E. D. Smith, 275; Muir v. Culy, 10 Up. Can. Q. B. R. 321; Armstrong v. Clark, 2 Code R. 143); and he may do this by proving admissions of such adversary (id.) And the testimony of a party may be controverted or impeached in the same manner as any other witness (Varono v. Socarras, 8 Abb. 302; Forward v. Harris, 30 Barb. 338).
h. Where the plaintiff and defendant's testimony is contradictory, a writ
ten statement by either opposed to his testimony will warrant the jury in disregarding his testimony (Boyd v. Colt, 20 How. 384).
§ 394. (Am'd 1849.) Refusing to testify.
If a party refuse to attend and testify as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer, or reply, may be stricken out.
a. Contempt.-To authorize the punishment of a party for contempt in refusing to be examined under sections 390-393, it need not appear that the misconduct was calculated to, or did, defeat, impair, impede, or prejudice the rights or remedies of any party as required (2 R. S. 538, § 20) in ordinary cases of contempt (Woods v. De Figaniere, 16 Abb. 1; 1 Rob. 607).
b. The proceedings to punish for a contempt, or strike out a pleading, must be based on affidavits, to be served with a notice of eight days (Hewlett v. Brown, 1 Bosw, 655). A party cannot be punished for a contempt for refusing to attend and testify on the mere service of a notice to attend, without any summons, and without payment of his fees as a witness (id.)
c. Where one of several defendants was subpoenaed to appear before a county judge, for an examination on behalf of the plaintiffs, and, on the day appointed, made default without any sufficient excuse, but it not appearing that the plaintiff or any of the parties were in attendance on said day, nor any reason given why they were not,-held that the defendant was not in contempt, and that the inference was that the plaintiff had abandoned the proceeding (Gardiner v. Peterson, 14 How. 513; see Satterle v. De Comeau, 7 Rob. 661).
See note to section 391.
d. In Bennett v. Hall 10 N. Y. Leg. Obs. 191, it appeared the defendant was subpoenaed on Saturday to attend to be examined on the following Tuesday, and in pursuance of previous arrangement he sailed for California on the Monday preceding. A motion for an order to strike out the answer for his nonattendance was denied.
e. This section does not give the court the power to stay the proceedings of a plaintiff in the action, because of his failing to attend and be examined as a witness before the trial (Appleton v. Appleton, 50 Barb. 486).
$395. (Am'd 1849, 1863.) Rebutting testimony.
A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, subject to the same rules of examination as other witnesses. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter, subject to the same rules of examination as other witnesses, and shall be so received.
See § 398, post.
$396. Persons for whom action is brought or defended may be examined.
A person for whose immediate benefit the action is prosecuted