Fiske v. Smith

75 N.Y. St. Rep. 624

Opinion

WILLARD BARTLETT, J.

The order for the examination of the defendants before trial cannot be sustained. The facts necessary to be shown upon such an application have been so frequently and so fully considered by the courts in the numerous reported cases upon the subject that they do not need to he restated here. In our opinion, it does not appear from the moving papers that the desired examination is either material or necessary. The affidavit upon which the order was granted is made by one William B. Gilmore, who describes himself as the agent for the plaintiffs for the purpose of making it, and who swears, among other things, that, from the nature of certain testimony given by the defendants in a chancery suit in New Jersey, “he is convinced that they would, if placed on stand at the trial of this cause, give false evidence, which deponent could not then rebut; but, if examined before trial, they will not dare to testify falsely to any facts of which the plaintiffs herein could prove the falsity, and on which examination the plaintiffs could procure the indictment of said Smith and Flora Sawyer. ” In other words, the plaintiffs want to examine the defendants before trial, in order to prevent them from committing perjury upon the trial. This reason is not recognized as sufficient «either by the Code or by the courts. It would be a reflection on the character of the parties to an action which the court has no right to make to force them to submit to an examination upon the •assumption or assertion that such a course is necessary in order to guard against subsequent false swearing on their part, especially when there is nothing to sustain the assumption or assertion except the bald statement of an agent of the adverse litigants that he is “convinced ” of the danger or perjury. Nowhere else in the affidavit do we find any special conditions set out which indicate that the examination of these defendants should take place before rather than upon the trial. See Abbott-Downing Co. v. Faber, 87 Hnn, 800, 685 E. 838. The proposition that the determination of the judge who grants the order will not be reviewed on appeal is not •correct so far as it relates to the appellate division. This court ¡possesses all the powers which belonged to the general term at the time the present constitution took effect. Const art. 6, § 2. The authority of the general term to review orders of this character was upheld in the case of Jenkins v. Putnam, 106 N. Y. 272, 6 S. R. 425.

The order appealed from must be reversed, and the motion to vacate the order of examination granted, with $10 costs and disbursements. All concur.