Deak v. Perth Amboy Gas Light Co.

The opinion of the court was delivered by Bergen, J. .This action was brought by the plaintiff as administrator ad prosequendum of Stephen Deak, Anna Deak and Annastasia, deceased, who were killed by an accident alleged to have resulted from the negligence of the defendant. The defendant, desiring to examine the plaintiff before trial, served him with a subpoena as provided by the act (Pamph. L. 1914, p. 151), commanding him to appear before a Supreme Court examiner, which the plaintiff obeyed and was sworn, but, under the advice of’counsel, refused to answer most of the questions. The statute invoked provides, “any party to an action may be examined as a witness at the instance of an adverse party, or any one of the several adverse parties after issue joined and before trial.” The first objection to the making of the order is that plaintiff is not a “party” when acting in a representative capacity. There is nothing in this objection; the plaintiff is a party to the action and is no less so because [458] liis character is that of a representative of the estate of deceased persons. The next objection is that one prosecuting an action in a representative capacity is disqualified as a witness unless he offers himself as such. A reading of the Evidence act (Comp. Stat., p. 2218, § 4) plainly qualifies oné as a witness who may sue or be sued in a representative capacity, but no party is to testify to any transaction with or statement by a party thus represented, unless the representative offers himself as a witness on his own behalf and testifies as to any such transaction or statement. Therefore the defendant in this case could not compel the plaintiff to testify to a transaction with or statements by the deceased represented by him, 'if thereby it opened the door to defendant to prove any transaction with or statements by the intestate. The method to compel an answer by plaintiff is the same as in the case of interrogatories, not answered by the plaintiff, which is to dismiss the proceedings, and is the only remedy provided by the statute of 1914, supra, and if the questions should have been answered they must be, or plaintiff’s action dismissed. An examination of the questions which plaintiff refused to answer show that none, except the last, in any way related to any transaction with, or statements by, the intestate, and all, except the last one, must be answered or the case dismissed. The plaintiff will be allowed twenty days in which to present himself to the officer before whom the examination was taken and make answer to all of the questions propounded, except the last, and in default the defendant may apply to have the proceedings dismissed. The defendant is entitled to costs of this motion.