Opinion
Argued June 9, 1881
Decided October 28, 1881
S.W. Fullerton for appellant.
Alfred Taylor for respondent.
This action was brought for the wrongful conversion of personal property, and was at issue upon the complaint and answer. The plaintiff, upon an affidavit, conceded to be sufficient, applied ex parte to a judge of the Supreme Court to have the deposition of the defendant taken before the trial, under sections 870, 872, 873 of the Code. The judge thereupon made an order that the defendant should be examined on oath, and her deposition taken pursuant to section 873 of the Code, and that for that purpose she should appear before George W. Powers, a referee appointed to take such deposition. Subsequently the defendant made a motion at Special Term to set aside such order, and the motion was denied, and then she appealed to the General Term, and from affirmance there to this court.
Section 870 provides that the deposition of a party to a pending action, or of a person who expects to be a party to an action about to be brought, may be taken before trial. Section 871 provides that the deposition of a person not a party, whose testimony is material and necessary to a party to an action, or to a person who expects to be a party to an action about to be brought, may also be taken. Section 872 provides how, and from what officer, and upon what affidavit, an order for taking the depositions before authorized can be obtained. Section 873 provides, among other things, that "the order must require the party or person to be examined to appear before the judge, or except when the person to be examined is a party to a pending action, or is expected to be a party to an action to be brought, before a referee named in the order, for the purpose of taking the examination at a time and place therein specified." The words in italics were inserted by amendment in 1879.
It thus plainly appears that a party, or expected party, must be examined before the judge. Any other person may be examined before a referee appointed for that purpose. The defendant was a party to a pending action, and hence an order requiring her to be examined before a referee is wholly unauthorized. This order was obtained in 1880, and probably the amendment of 1879 was overlooked. The power of the judge to make an order for the examination of the defendant before trial depends wholly upon the statute, and as no power is found there to make this order it cannot be sustained.
As the order did not rest in discretion, and was wholly unauthorized, and as the defendant had the right, if examined, to be examined before the judge who made the order, we think the order is subject to review in this court. In Rogers v. Durant ( 56 N.Y. 669) we held that an order appointing a referee, and requiring one who has refused to make an affidavit claimed to be necessary for the purpose of a motion to appear before such referee and make affidavit (Code, § 401), did not affect a substantial right of the witness, and was not reviewable in this court. But that case is distinguishable from this. A party whose deposition has been taken before trial at the instance of an adverse party has the right, if he desires it, to read such deposition in evidence on the trial in his own behalf (Code, § 881), and hence he has a substantial right that it shall be legally taken so that he can use it. Otherwise a party may be harassed by an examination which will in no way benefit him, and yet compel him to disclose to his adversary in advance the facts upon which he relies to sustain his case.
The orders of the General Term and Special Term should be reversed, and the order of the judge vacated, with costs of the appeal to the General Term and to this court.
All concur.
Ordered accordingly.