Mudge v. Gilbert

Hardin, J. —Prior to the adoption of the Code in 1848, bills of discovery were allowed to obtain evidence in aid of [220] actions at law (Lansing agt. Starr, 2 Johns. Ch., 150 ; Deas agt. Harvey, 2 Barb. Ch., 448; Lane agt. Stebbins, 9 Paige, 622). This practice was abolished and prohibited by section 389 of the Code ;6 and by section 388 the method provided for searching documentary evidence was provided. • Section 390 provides that, “ a party to an action may be examined as a witness * * * and subject to the same rules of examination as any other witness to testify either at ■the trial, or conditionally, or upon commission ;” and by section 392, it is provided that the examination “may be read by either party on the trial.” . I think the important question before the court, if the party is examined in court, or before the judge, if examined out of court, is as to the materiality of the proposed evidence. If -the proposed evidence relates to any of the issues raised by the pleadings, then, I am of the opinion, that it is the duty of the court to receive the evidence, (subject to its discretion- as to the order), and if the examination is before a judge, then it is his duty only to determine, whether the proposed evidence relates to any of the* material issues involved in the action. By reference to Bell agt. Richmond, (50 Barb., 571), it will be observed that it has been held by the general-term in the third district, that a party cannot be examined under these sections, before issue is joined; and in the opinion given in that case, it was remarked “that witnesses are always to be examined on matters pertinent to the issue.” This last case is in accordance with Cook agt. Bidwell, (29 How., 483), in which the court say that, “the examination cannot be had except in an action after issue, and as to matters pertinent to the issue” (Same Case, 17 Abb., 300). That the party is to appear and testify, and be subjected to the same-rules of examination as any other witness has been adjudged so often,.that it is not now ah open question. As early as Bonesteel agt. Lynde, (8 How., 226, 233), Judge [221] Wells, said of section 390, that it, “ in terms, declares that he may be compelled to testify the same as any' .other witness.” u To testify is to give evidence, and the reasonable and just interpretation of the word requires that he give evidence in the same manner as other witnesses are bound to do.” This opinion was affirmed at general term in 8 How., 352. And in giving "effect to a party’s testimony, the same rules apply as to any other witness (See opinion of Barculo, J., in Roberts agt. Gee, 15 Barb., 450). The question presented relates to the power of the county judge to compel the defendant to answer questions which relate confessedly to the issues involved, and I have no doubt but the power is vested, and that it will be properly exercised in this case, and that it is the duty of the defendant to answer any and all questions which the county judge shall determine relate to the issues raised by the pleadings in this action (16 Abb., 188 ; 32 N. Y., 127). I see no errors in the rulings of the county judge, and the witness will, therefore, be recalled, and the examination may continue.