Bank of Silver Creek v. Browning

16 Abb. Pr. 272

Opinion

By the Court.

*—Marvin, J.

Had the justice in the first disti’ict authority to make the order, and take the examination of William Browning? By the Code, “Every direction of a court or j udge, made or entered in writing, arid not included in the judgment, is denominated an order.” (§ 400.) An application for an order is a motion. Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that when the action is triable in the first judicial district the motion must be made therein, and no motion can be made in the first district in an action triable elsewhere. Orders made out of court, without notice, may be made by any judge of the court in any part of the State. (§ 401.) The proceeding to take the testimony of a witness conditionally, is under the Eevised Statutes. The application is to be made to any judge of the court, upon an affidavit stating certain facts; and the judge is authorized to make an order, requiring the adverse party to appear before him, and attend the examination of such witness, at such time and place, &c. At the time and place named, the adverse party may show cause against proceeding in such examination, by proof of certain facts. If no cause be shown, and upon proof of service of the order, &c:, the officer granting the same is to proceed and examine the witness, &c. (2 Rev. Stat., 392, §§ 2-5.) Thus, it is seen that an order, requiring the adverse party to appear before the officer and attend the examination of a witness, is an order made out of court, and without notice; and the Code of Procedure expressly authorizes such an order tó be made by any judge of the court, in any part of the State. The counsel for the plaintiff argues that the order was, at most, but an order to show cause why the deposition should not be taken, and that.such an order is equivalent to a motion on notice. It is true, that the statute gives to the adverse party the right to show cause against proceeding in such examination, by proving certain facts; but it does not follow that the order made by the judge, requiring the party to appear, and the examination, is nothing more than an order to.show cause. On the contrary, it is an absolute, peremptory order to appear, and attend the examination of the witness. Cause may be shown why the judge should not proceed in the examination, and then he is simply to dismiss the application. I have not overlooked the act of 1851, ch. 472, referred to by the counsel, amending the Bevised Statutes. This statute confers additional power on the officer. He may, in his discretion, make an order requiring the adverse party to show cause why the testimony should not he taken by a referee, to be appointed by him, &c. This, under our present practice, is a convenient additional power. It would enable a judge, in the district where the action is triable, to appoint a referee to take the testimony of a witness in any other part of the State. But the act of 1851 does not affect the construction above given to the Revised Statutes and the Code.

. In my opinion, the justice in New York had authority to make the order and to take the examination.

The objections relating to the filing of the depositions nunc jpro tunc, are all answered by the case of Burdell a. Burdell (1 Duer, 625). I fully concur in the opinion of Judge Bosworth, and the case is in point.

This brings us to the 'exceptions to the charge, &c. The action was upon two drafts, drawn by the defendant on a house in New York. The defence was that the defendant was an infant when he drew the drafts. The defendant gave evidence tending to show that he was an infant. The plaintiff proved certain transactions of the defendant after he had attained his majority. In conversation with Mr. Jew, the president of the plaintiff, the defendant said he had the money of the plaintiff, and that it was a just debt, and ought to be paid. Mr. Jew requested him to pay the draft. He replied, I cannot do it now; I might have done it a few days ago; that the plaintiff' ought to have its pay. To another witness, he stated that he got the money from the plaintiff, and the plaintiff ought to have the pay. The money obtained by the defendant was used in purchasing butter, which was consigned by the defendant to the drawees and acceptors of the bills in question, in New York. They had failed. The plaintiff requested the judge to charge the jury, that if it was proved to them that the defendant made an explicit acknowledgment of his indebtedness to the plaintiff after he became of age, that it was equivalent to a new promise. The judge declined so to charge, but did charge that such acknowledgment was evidence from which the jury might raise the presumption of a new promise. The plaintiff excepted to the refusal to charge as requested. The judge submitted the question as to the infancy of the defendant; and then, in case the jury should find he was an infant, the question whether he had ratified his indebtedness to the plaintiff by a new promise after he became of age. He told the jury that an explicit acknowledgment of the debt after the defendant became of age was not sufficient to create a new promise, unless the evidence satisfied them that the defendant made a new promise after coming of age. The plaintiff excepted. In Gay a. Ballou (4 Wend., 403), Sutherland, J., says, “ When the plaintiff’s demand is not for necessaries, and the issue is upon a new promise after the defendant came of age, an express promise must be proved; because, there never having been any legal obligation on the part of the defendant, he cannot be legally liable without such promise.” (See Millard a. Hewlett, 19 Ib., 301.) In Parsons on Contracts (vol. i., 269), it is said, a mere acknowledgment that the debt existed, or that the contract was made, is not enough. It need not be a precise and formal promise, but it must be a direct and express confirmation, and substantially (though it need not be in form) a promise to pay the debt or fulfil the contract. It must be made with the deliberate purpose of assuming a liability from which he knows that he is discharged by law, and'with no compulsion, and to the party himself or his agent. Humerous cases are cited by Parsons; and see Greenl. Ev., § 367; Goodsell a. Myers, 3 Wend., 479. The charge of the judge came fully up to the cases.

The motion for a new trial should be denied, with costs, and the defendant should have judgment.*

Present, Grover, P. J., Green, Makviit, and Davis, JJ.

We understand that this decision was affirmed by the Court of Appeals, December, 1862.