El Tazi v. Stein

13 N.Y.S. 96, 36 N.Y. St. Rep. 548, 1891 N.Y. Misc. LEXIS 974

Opinion

Daniels, J.

It is reasonably clear from the affidavits that the chief object for requiring the examination of the defendant, as a witness before the trial, is to oblige him to produce the books and correspondence of the defendants. It has been intimated in some cases that this proceeding may be authorized under the provisions of the Code of Civil Procedure for the examination of a party at the instance of his adversar)', before the trial. People v. Dyckman, 24 How. Pr.222; McGuffin v. Dinsmore, 4 Abb. N. C. 241. But, as the Code and the rules of practice have specially prescribed other proceedings for the attainment of that end, these decisions were not made upon that degree of com sideration which entitle them to be followed as authority. More especially, also, for the reason that the general terms of this court, and of the court of common pleas, have decided directly the other way, and in conformity to the prescribed practice.- De Bary v. Stanley, 5 Daly, 412; Hauseman v. Sterling, 61 Barb. 347. So far as the application rests on the fact of the anticipated absence of the defendant when the trial shall be had, it is fully met by his affidavit stating that he will not be absent, but will be personally present at the trial. In addition to that, the affidavits are not so substantial in their statements as to support the order which has been made. The order should be reversed, with $10 costs and the disbursements, and the order for the examination should be vacated. All concur.