Herbage v. . City of Utica

Danforth, J. The cases cited by the respective counsel show that the practice in relation to the subject is not uniform throughout the various departments of the Supreme Court, but we are of opinion that a party litigant may, in the discretion of the judge to whom application is made under the provisions of sections 870, 872, 873 of the Code of Civil Procedure, have a general examination of his adversary as a witness in the cause, as well before as at the trial, and that it is not, as of course, to be limited to an affirmative cause of action, or. an affirmative defense set forth in favor of the party desiring that examination. The order appealed from was so limited, not according to the discretion of the court, by which it might have been restrained, but because, as appears by the order, the court was of opinion that it had no power to order otherwise. The order appealed from should, therefore, be reversed, and the case remitted to the Supreme Court for further consideration, without costs in this court to either party. All concur. Ordered accordingly.