Bell v. Richmond

4 Abb. Pr. 44, 50 Barb. 571

Opinion

By the Court.

Footnotes

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*—Cardozo, J.

The question presented for our consideration-is whether a party can be examined as a witness under section 391 of the Code, before issue joined. I think the issue should be joined before the examination is had, unless a case is made, which is not pretended in this instance, justifying an order for the taking of the testimony de bene esse. The only reported decision in which a different view has been taken is McVickar v. Ketchum (1 Abb. Pr. N. S., 452), in which'the general term of the superior court (Justices Mouell and McCuhh) held' that the examination might be had at any time after the action was commenced.

But the question did not really properly arise there, for the plaintiff had been obliged by Justice Mohcreie to put in a verified complaint before he permitted the examination.

The theory that the change made in 1863 in section 395 of the code "by striking out at the end of the first sentence the words “ in relation to matters pertinent to the issue,” controls or affects this sentence, is fallacious. That portion of the section stood, "before- the amendment, thus: “A party examined "by an adverse party as in this chapter provided, may be examined on his own behalf, in relation to matters pertinent to the issue.” As amended, it reads, “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.”

The change does not affect this question, for witnesses are always to be examined on matters pertinent to the issue; and the words, “ subject to the same rules of examination as other witnesses,” covers that and other matters. To have used both phrases would been somewhat tautological. The idea expressed in the first was included in the latter. The omission, therefore, furnishes no ground for the argument that the change was to alter the rule which had previously obtained, and which, in fact, never was based upon that section at all. Indeed, that section does not and never did bear, upon the time when &e examination should be had, but only enabled a -party who had. been examined by his adversary to become a witness for himself. At that time, the law did not permit a party to be a witness for himself, but allowed his adversary to call him if he pleased, and the sole purpose of section 395 was to authorize a person called by the opposite party, to be a witness also on his own behalf.

I think there is nothing in section 391 which prevents our requiring that some issue shall exist to try, before the examination which is to be had in lieu of an examination at the trial, shall be allowed; and as no practice has been authoritatively established upon the subject, and as much injustice might be done by permitting a general, unrestricted, roving examination of a party, as it must be, if allowed before the issue is framed, and as there is no necessity for any such rule being adopted, I think we may properly hold the true construction of the. section to be the one I have given to it.

The order appealed from should be reversed.

Present, Barnard, P. J., and Ingraham and Cardozo, JJ.