Byrnes v. Ladew

Pryor, J. As the defendants move, upon plaintiff’s own papers, to vacate the order for their examination before trial, the application, although on notice^ is properly heard at Part II of the Special Term. Code, § 772, last clause; Sturz v. Fischer, herewith decided. The complaint exhibits a cause of action against defendants for injury from a defective elevator. Upon allegations, in an affidavit, that the plaintiff is unahle to “ ascertain ” whether the defendants, or somebody else, are responsible for his injury — in other words, whether he has a cause of action against them. — he proposes to examine them “ to ascertain ” the fact of their liability. As said by Bartlett, J., in Churchman v. Merritt, 51 Hun, 375, 377, “ It would seem that the plaintiff’s real purpose in the examination of the defendant is not to obtain knowledge of facts which will facilitate the statement” (or proof) “of.a known and ascertained cause of action, but is rather to find out whether any cause of action whatever really exists in her behalf against these . defendants. Under these circumstances, an [414] examination of a defendant before trial is not authorized by ' the statute. To sanction it would be to permit investigations of the most harassing character, and give rise to a practice liable to grave abuse.” See Britton v. MacDonald, 3 Misc. Rep. 514; Winston v. English, 44 How. 398. The cases cited contra are not of authority - to overthrow ■ . this principle. Sweeney v. Sturgis, 24 Hun, 162, was a decision by a divided court. Douglass v. Meyer, 21 N. Y. Supp. 1091, was a ruling at Special Term. In re Nolan, 24 N. Y. Supp. 298; 53 N. Y. St. Repr. 737; 70 Hun, 536, the: application was, before action brought; to take and perpetuate tes- ■ timony; but even as such I question its propriety, since ¡surely ; it was .never the policy or purpose of the statute to permit an' experiment of discovery whether a plaintiff have -a cause of action against any person whom he may be pleased to implead and subject to the inquisition. A party may examine his adversary in order to frame his pleading or complete his ¡proof, •'but not to ascertain Whether he has a cause of action or a defense against that adversary. • Motion granted.