Opinion
June 17, 1943.
Weil, Gotschal Manges for defendant.
Harry Meisnere for plaintiffs.
Motion of defendant to vacate notice heretofore served by plaintiffs for discovery and inspection, sought by virtue of section 327 of the Civil Practice Act, is granted. That statute is applicable only where a document is referred to in an adversary's "pleadings or affidavits", and it is clear that where such is not the case, discovery and inspection must be sought by motion and order of the court obtained therefor. ( Schmoll Fils Associated v. Baltic America Line, 231 A.D. 231.) Admittedly, there is no reference to any document in the defendant's pleading or in any affidavit by it; hence section 327 is inapplicable and the notice served is irregular in practice and is unauthorized.
Plaintiffs urge as a contention that such a reference appeared in the course of the deposition of the defendant when examined before trial pursuant to an order of the court; that deposition and affidavit are the same, or at least are equivalents, and hence the deposition should be regarded as an affidavit, and so regarded the notice served was authorized under section 327.
I do not share this view. An affidavit and a deposition are not one and the same, merely because the affiant is under oath. An affidavit is an ex parte statement, made without notice, and with no opportunity for cross-examination; a deposition is testimony given under oath, pursuant to notice, upon oral or written interrogatories, and with opportunity for cross-examination. While, generally, a deposition may be used in the place of an affidavit, the converse of the proposition does not follow in the absence of some statute so providing. Besides, I think the section uses the term "affidavit" as it is understood ordinarily in legal terminology and not as a generic term.
A reference to a document in the course of testimony taken by deposition is not a reference made in an "affidavit"; the statute makes provision by other sections where discovery and inspection are sought where the document in concern has not been referred to by the adversary in his pleadings or affidavits ( Schmoll case, supra), which was not the practice pursued here. Defendant's contention is well founded. Settle order.