Fonda v. Armour

Moítell, C. J. The power to summon a witness for examination for the purpose of perpetuating his testimony is given to a judge of this court, but not to the court itself. "Under section 23 of the act organizing this' court (laws 1828) the justices of this court are authorized to perform all the duties which the justices of the supreme court out of term are authorized to do and perform by any statute of this state. . In proceedings, therefore, to perpetuate testimony, we act as quasi supreme court commissioners; and our power to act does not depend upon the pendency of the action in this court, but we may proceed, although the action is pending in any other court. But a judge of this court is confined in the exercise of his judicial functions to the city of Hew York, and he can perform no judicial act whatever elsewhere. Therefore, although, acting as a supreme court judge, he may summon a witness for examination, he cannot go out of the city of Hew York to take the' examination (Jackson agt. Leek, 12 Wend., 105). The statute requires that the place for the examination of the witness shall be within the county where such witness resides. Hence no order can be made for his examination elsewhere, either by a justice of the supreme court, or by any other officer acting as such a justice. (Sheldon agt. Wood, 2 Bosw., 267). Although in Jackson agt. Leek (supra), it was held not to be irregular to take the examination in the county of a supreme court commissioner, notwithstanding the witness resided out of such county. [74] Had the witness, therefore, in this ease appeared at the place appointed in this city, and submitted to an examination, it would have been regular. But as he has not appeared for such a purpose, and only appeared by his counsel to object, he cannot be required to obey the summons. To obtain his examination, the party must procure a summons returnable in the city of Brooklyn. The proceeding must be discharged.