[See explanations on pp. 1346-1351 and 1619-1621 of this volume. The chancery discovery in creditors' actions is also expressly preserved (N. Y. Code Civ. Pro., § 1871), but by oral examination (§ 1871).]

NOTE.- The examination of a party before trial has been the subject of nany diverse, as well as irreconcilable, adjudications. The language of the Code sections evinces a plain purpose to authorize a party to freely examine his adversary generally, not even limiting him to that portion of the issues upon which he holds the affirmative.74 The courts have for many years refused to permit the examination except under what may be considered exceptional circumstances, and, particularly in the first department, there has seemed a determination to eliminate much of the intended usefulness of the remedy. But the very latest decision by the Appellate Division of the First Department (cited below), evinces an intention to recede from the former position taken by that court, and certain general principles are laid down more in accord with the intent of the codifiers, and which will enable parties to more readily obtain the benefit of the remedy. It is believed that much that has

73 The right to the examination is not absolute; the language of the code, that the judge "must" grant the order was not intended to prevent the exercise of his discretion. Jenkins v. Putnam, 106 N. Y. 272.

This proceeding applies in Surrogate's Courts. N. Y. Code Civ. Pro., § 2538, except where § 2539 precludes.

For proceedings to examine before suit brought, see Volume I, p. 534. To ascertain unknown or additional defendants, Volume I, p. 704. To enable applicant to plead p. 1346 of this volume. For other examinations, see p. 1608, An examination of a defendant usually cannot be had in an action for an accounting, as being entirely unnecessary. Louda v. Revillon, 99 App. Div. 431, 91 N. Y. Supp. 194. If had, it will be confined to those matters which the interlocutory judgment will dispose of. Bernheimer v. Schmid, 59 App. Div. 564, 69 N. Y. Supp. 659.

73a By an amendment to Code Civ. Pro., § 870, made in 1904, the right to the examination was extended so as to include an examination taken dur ing the trial. It was at once held, that the papers upon the application must comply with the requirements of § 872, and that it was obligatory upon the applicant to show a reason arising after the case was set down for trial. Hlebron v. Work, 101 App. Div. 463, 92 N. Y. Supp. 149, 34 Civ. Pro. Rep. 134 (holding it error to permit the taking of a party's deposi tion at his own instance during the trial, on the ground of his advanced age and infirmity). So far as the second point in this case is concerned, it is probable it may not be extended to the case of a party seeking the examination of his adversary during the trial, under the more liberal construction announced in Goldmark v. U. S. Elec.-Galv. Co., 111 App. Div. 526, 97 N. Y. Supp. 1078.

74 Herbage v. Utica, 109 N. Y. 81. N. Y. Supp. 331.

See Doll v. Smith, 43 Misc. 417, 89

been previously written on this subject has been rendered obsolete by this latest decision.

In Goldmark v. U. S. Elec. Galv. Co., 111 App. Div. 526, 97 N. Y. Supp. 1078, the Appellate Division of the First Department, in sustaining an order for the examination of an officer of the defendant, lays down the following principles (see, for a reaffirmance of the court's position, McKeand v. Locke, 115 App. Div. 174):

(1) Where an issue of fact is presented to be determined upon the trial of an action, and where it appears that a party to the action has knowledge of facts which are material in the determination of that issue (so far, at least, as the applicant's cause of action or affirmative defense is concerned) 75 either party to the action under the provisions of the Code is entitled to examine the other party and have his deposition taken for use at the trial.

(2) It is not an answer to such an application to show that the party making the application can subpoena the party sought to be examined, and thus obtain his testimony at the trial.

(3) A stipulation by a party that he will personally appear upon the trial of the action is not an answer to the application.

(4) It is not an answer to such an application that the party making it can procure the evidence from other persons than the party whose deposition is required.76

(5) There can be no question of laches, for the deposition may be taken at any time before or during the trial.77

(6) That the requirement of Court Rule No. 82, that the applicant must show that the deposition is material and necessary is intended merely to prevent an examination for ulterior or improper motives.78

The profession will also find considerable satisfaction in the following late adjudications:

In an action for personal injuries, plaintiff may examine defendant upon the issue as to operation and ownership of machinery, or train. Watt v. Feltman, 111 App. Div. 314, 97 N. Y. Supp. 737; Muldoon v. N. Y. Central, etc., R. Co., 98 App. Div. 169, 91 N. Y. Supp. 65.79 Or, as to the control of the locus in quo. Vial v. Jackson, 73 App. Div. 355, 76 N. Y. Supp. 668.79

75 See, also, Dudley v. N. Y. Filter Mfg. Co., 80 App. Div. 166, 80 N. Y. Supp. 529; McKenna v. Tully, 109 App. Div. 598, 96 N. Y. Supp. 561; Whitney v. Rudd, 100 App. Div. 492, 91 N. Y. Supp. 429.

76 Compare Knight v. Morgenroth, 93 App. Div. 424, 87 N. Y. Supp. 693. 77 Compare Whitney v. Rudd, 100 App. Div. 492, 91 N. Y. Supp. 429. 78 This indicates an intent to remove the rock upon which so many of these applications have gone down, viz., the necessity of showing that it was necessary to take the testimony before rather than at the trial. See Richardson, etc., Co. v. Schiff, 93 App. Div. 368, 87 N. Y. Supp. 672; Hay v. Zieger, 50 App. Div. 462, 64 N. Y. Supp. 202.

79 Compare Tenoza v. Pelham Hod Elev. Co., 50 App. Div. 581, 64 N. Y. Supp. 99.

FORMS.

FORM No. 1398.

Affidavit to obtain examination of adverse party before trial.80 [Title of court and action.]

I. That he is [the attorneys for] the plaintiffs2 [or, defendant] above named [if otherwise, state relation to the cause].

II. That this action was commenced by the service of the summons [and complaint] on on the 19 , and that issue83 was joined herein on the day of

19 by the service of the defendant's answer [or otherwise show issue in a condition to be tried].

III. [As in paragraph III, Form 1014, 1358.]

IV. That this action is brought [here state the nature of the action and the substance of the judgment demanded therein.84 See Forms 1399-1406 (below)].

V. That the defense in this action is [stating its nature. See Forms 1401-1406 (below)].

VI. That the testimony of the above-named party [or, if an officer or director of a corporation:-that- (naming him) — is an officer,85 to wit (designating office) · (designating office) of the corporation above named, and his testimony] is material and necessary to enable [plaintiff] to prepare for trial, for the following reasons:86 [specifying in what respects it is material, as in Forms 13991406 (below)].

[In the case of an adverse party, his residence will have been given in paragraph III, and need not be repeated; if, however, he is temporarily sojourning, or has a. place of business elsewhere, it may be shown as affecting the county for the examination.]

VII. [If an officer of a corporation party: That the said [name], whose examination is desired, resides at [or, is now sojourning-or, regularly transacts business at-stating place; and if a city, the street and number; and if a resi dent of the State, but not of the county where the examination is sought, add], and has an office for the regular transaction of business in person in the county of [If a non-resident, and leave is desired to serve the order in any other county than that where it is to require him to attend for examination, add reason. N. Y. Code Civ. Pro., § 886.]

VIII. That deponent intends to use the testimony of said [defendant] upon the trial of this action.87

84 Hart v. Chase, 67 App. Div. 445, 73 N. Y. Supp. 957; Swain v. Pettingill, 58 Hun, 607, 12 N. Y. Supp. 57; Wahle v. McMillan, 2 Misc. 343, 21 N. Y. Supp. 1012.

85 Officers and directors of a corporation may be thus examined, but not servants, agents or employees. Reichman v. Manhattan Co., 26 Hun, 433.

86 N. Y. Gen. Rules No. 83. The affidavit must show the materiality of the witness either to the knowledge

of deponent, or it must show, if made on information, the sources of information upon which deponent bases the allegation of the materiality. See note 81, supra; Rosenbaum v. Rice, 36 Misc. 410, 73 N. Y. Supp. 714.

87 Not necessary to state if it appears by fair inference. McCormack v. Coddington, 98 App. Div. 13, 90 N. Y. Supp. 218; Whitney v. Rudd, 100 App. Div. 492, 91 N. Y. Supp. 429.

[If the examinee is a convict, in jail, state it. N. Y. Code Civ. Pro., § 877.]

IX. and to the end, as in Form 1014, p. 1358.]

FORMS NOS. 1399-1406.- STATEMENTS OF CAUSE OF ACTION AND DEFENSE, MATERIALITY AND NECESSITY SUITABLE TO BE INSERTED IN THE FOREGOING FORM.

FORM No. 1399.

Action against broker or other fiduciary.88

That this action is brought to recover damages [in the sum of dollars] sustained by the plaintiff, by reason of the misconduct and breach of duty of the defendant, while acting as factor for plaintiff, in the sale or disposition at

in the

year
and laces which were of the value of over
by plaintiff to defendant, as factor, for sale.

of linen and cotton embroidered handkerchiefs
dollars, consigned

Paintiff charges that the defendant did not sell the said goods in a proper manner and according to the usage of merchants, and with a proper exercise of care, discretion and diligence, and in good faith, but that he acted in bad faith, contrary to usage, and sacrificed said goods.

That an examination of the defendant Y. Z., and his books and papers, is material and necessary to enable the plaintiff to prove that the defendant has acted and conducted the said business in the manner aforesaid, and to learn the names of persons concerned in the sale of the plaintiff's goods, and the method employed in the disposition of said goods, and the character of the sales, all of which are at present unknown to the deponent. [State all the details fully.]

FORM No. 1400.

In action against stockbroker by customer.- Defense and necessity.89 The testimony of the plaintiff, T. A. H., is material and necessary for the defendants and for the defense of this action, and the prosecution of the defendants' counterclaim, for the following reasons: The complaint in this action alleges in the and paragraphs thereof, "that defendants never demanded of

88 From Smith v. McDonald, 1 Abb.

N. C. 350.

See, also, Haebler v. Hubbard, 36 Misc. 840, 74 N. Y. Supp. 932.

89 Sustained in Hardy v. Peters, 30 Hun, 79.