Seeley v. . Clark

78 N.Y. 220, 1879 N.Y. LEXIS 897

Opinion

Daxforth, J.

The words “ party to an action,” in section 870 of the New Code, include parties to the record, and no one else. Such is their legal and ordinary meaning. Mead, the person whose examination was directed, it is conceded, is not one of those parties. That he is a party in interest is not sufficient; he is still “ a person not a party,” and his examination in certain cases is provided for by sec tion 871. It. is not claimed that a case is made out under that section. To bring him within section 870, the court must supply words, viz., “party in interest,” which an examination of title 12, chapter 6 of the Old Code, and a comparison of its provisions, with those of the New (title 3, chap. 9), show, that the Legislature intentionally omitted. This we have no authority to do.

The order for his examination was therefore properly vacated,' and the order of the General Term should be affirmed, with costs.

All concur, except Andrews, J., absent.

Order affirmed.