SUPREME COURT.

#### James K. Spratt, appellant, agt. George C. Huntington, respondent.

*General*Term, *New*York,

October, 1874.

*Power to require one party to make an affidavit at the instance of the other*party, *to he used, on the hearing of a motion.*

Before the enactment of subdivision 7 of section 401 of the Code, the affidavit of a party could not be compulsorily procured by his adversary-tor the purpose of enabling the latter to use it upon a motion —

And subdivision 7 of section 401, does not modify nor repeal the precedent prohibition contained in section 389 of the Code, which declares that a party shall not be examined on behalf of the adverse party, except in the manner prescribed by chapter 6 of the Code, and that merely provides for his examination as a witness in the action.

No difficulty stands in the way of maintaining both provisions at the same time; and when that can be done, the latter statute does not repeal or supersede the earlier one relating to the same general subject-matter. Where an order is made requiring the plaintiff to appear before a referee, at the instance of the defendant, to make an affidavit to be used on a motion, which the plaintiff refuses to do, and the defendant procures a further order that the plaintiff make such affidavit, and for his punishment in case of further disobedience, the plaintiff on moving to vacate the first order as irregular, is entitled to have his motion granted; and this necessarily vacates the second order, which is founded on the first.

An order was procured by the defendant, without notice, requiring the plaintiff to appear before a referee, and make an affidavit to be used by the defendant upon a motion to be made by him in this action. He did not make the affidavit; and a further order was made on notice to him to- appear and do so, and providing for his punishment in case of further disobedience on his part. The plaintiff then moved, to-vacate *98the first order, as irregular, and that motion was denied. From these two orders the plaintiff appealed to the general term.

*H.*Brewster, for appellant.

*J. H. Whitelegge,*for respondent.

Daniels, *J.*

The fact that the plaintiff was nominally as well as actually in contempt for disobeying the order requiring him to appear before the referee and make his affidavit, did not prevent him from moving to vacate that order if in fact it was irregular. For if that was its character he was entitled as a matter of strict right to have it set aside. A party in contempt is not precluded from making such an application, but merely from applying for -a favor resting to some extent at least in the- discretion of the court *(Brinkley*agt. Brinkley, 47 *N.*Y., 40).

And as the order requiring the plaintiff to appear before the referee and make his affidavit was made *ex parte,*the only mode in which he could be relieved from it was by a motion made to vacate or set it aside. He was directly affected by the order, and, if it was irregularly made, he had the right to have it set aside. The motion was properly made by him, and could have been made by no other person *(Ramsey*agt. *Gould,*57 *Barb.,*400, 410); and, as already shown, the order directing him to appear, made in the motion for his punishment, did not prevent him from making the application he did to vacate the first order. One of the appeals is from the order giving such direction; and that order is consequently under the entire control of this court, and for the purpose of determining the disposition which should he made of it, the question must first be considered whether the motion to vacate the order requiring the affidavit from the plaintiff was properly denied, and the solution of that question depends upon the existence of the power of the court to require one *99party to make an affidavit at the instance of the other party, to be used on the hearing of a niotion.

In the case of *Cockey*agt. *Hurd*(36 *N. Y. Superior Court*Reports, 42), it was held that the court did possess that authority. This case was decided upon very full consideration, and being decided by the general term of a co-ordinate tribunal in this city, should be followed for the purpose of securing uniformity in the practice of the courts, unless it clearly appears to be erroneous. To a considerable extent its effect is impaired by the circumstance that two of the learned judges of that court have reached a different conclusion in carefully considered opinions — one of which was delivered since *Cockey*agt. *Hurd*was decided *(See Cockey*agt. *Hurd,*12 *Abb. [N.*S.], 308; *Knoeppel*agt. *Kings Co. Ins. Co.,*47 *How.,*412). The decision also receives some support from the case of *Fisk*agt. *Chicago & Rock Island R. R. Co.*(3 *Abb. [N.*S.], 430). But it is exceedingly slight, because the point, though decided, was not to any extent made the subject of examination.

Before the enactment of subdivision 7 of section 401 .of the Code, the affidavit of a party could not be compulsorily procured by his adversary for the purpose of enabling-, the latter to use it upon a motion *(Palmer*agt. *Adams,*22 *How.,*375); and the general term of the superior court of- New York, in deciding *Cockey*agt. *Hurd (supra),*derived' the authority exclusively from that subdivision; and-it. is-substantially placed upon the ground, that -it modified or. repealed the precedent prohibition contained in. section 389 of the Code.

A mere modification it could not very well be; for that section declares that a party shall not be examined on behalf of the adverse party," except in the manner -prescribed by chapter 6 of the Code, and that merely provides for his examination as a witness in the action. If subdivision 7 of section 401 has had any effect on this prohibition, it hag repealed it altogether. Nothing less than that could possibly *100be done, and, at the. same time, provide for a different mode of examining a party. If, under subdivision 7 of section 401, a party can be so far examined before' a referee as to be required to make an affidavit, at the' instance and for the benefit of the adverse party, then a different mode has been provided for the examination of a party than that prescribed by chapter *6 of the*Code; and the prohibition that it should not be done has certainly been .repealed. But, if it has not been repealed, then subdivision 7 of section 401, should be so construed as not to include parties to the action. .

The prohibition restricting the examination of one party at the instance of another to the mode prescribed by chapter 6 of the Code, has not been expressly changed or modified since 1848, when it was enacted; and that, certainly, is very cogent evidence that the legislature has at no time designed to effect any change in the restriction imposed by it. By the enactment of subdivision 7 of section 401, no indication was given of the existence of any legislative purpose to change it. All that was then done upon this subject was to declare that section 401 should be amended, by adding to it what is now subdivision 7 *(Laws of 1862, 858, sec.*32). It simply provided for making an amendment, by way of an addition to one section, without indicating the existence of any purpose of changing any other section by doing that; and that it did not change the prohibition contained in the preceding section, 389, is well settled by the principle of construction restraining statutory repeals by implication.

The addition made by the amendment *to*section 401 was in no just sense repugnant to the prohibition contained in section 389. Both can very well stand together; and, where that can be done, no repeal by implication is effected by a later enactment.

By subdivision 7 of section 401, the affidavit of any person may be secured in favor of any party requiring it to make or oppose a motion, and, at the same time, parties can only.be .examined in the manner prescribed by chapter 6 of the Code. *101Ho difficulty stands in the way of maintaining both provisions at the same time; and when, that can be done, the latter statute does not repeal or supersede the earlier one relating to the same general subject-matter.

The rule on this subject is, that the earliest statute “ remains in force unless the two are manifestly inconsistent with and repugnant to each other; or unless in the latest act some express notice is taken of the former, plainly indicating an intention to abrogate it. As laws are presumed to be passed with deliberation, and with *full*knowledge - of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence a repeal by implication is not favored ; on the contrary, courts are bound to uphold the prior law, if the two acts will subsist" together ” *(Bowen*agt. *Sease,*5 *Hill,*221, 225, 226; *McCartee*agt. *Orphan Asylum,*9 *Cowen,*438 ; *Hayes*agt. *Symonds,*9 *Barb.,*360; *Van Rensselaer*agt. *Snyder, id.,*303). This rule is more particularly applicable to an amendment of a system or scheme of laws relating to one general subject, like that of the Code of Procedure *(Powers*agt. *Shepard,*48 *N. Y.,*540); and under its application it is quite plain that the enactment of subdivision 7 as a mere amendment *of*section 401 — which is all that was done — did not repeal or modify the restriction imposed by the preceding section 389 of the Code.

It was so held in a carefully considered opinion in the case of *Hodgeson*agt. *Atlantia and P. R. R. Co.*(5 *Abb. [N.*S.], 73), and for the reasons already stated, that authority should be followed instead of the decision finally made in *Cockey*agt. *Hurd (supra).*

The plaintiff was not bound to make an affidavit for the defendant, because he was a party to the action in which it was required, and his motion to vacate .the order requiring him to appear before a referee to make it should have been granted.

*102The order directing him to appear, which was made upon the'hearing of both parties, and provided for proceedings by way of punishing the plaintiff for contempt if he failed to do so, is necessarily dependent on the order denying the plaintiff’s motion to vacate the first order. If the latter is vacated the foundation is entirely removed, on which the second order stands. It follows, therefore, that the reversal of the order denying the plaintiff’s motion requires the entire proceeding to be annulled. That should be reversed for the reasons already given, and, as a consequence of that, the order made for taking the plaintiff’s affidavit must be vacated, and the other order made at the defendant’s instance, and appealed from by the plaintiff, specially directing the plaintiff to make the affidavit, or, in default thereof, that he should be attached and brought before the court to be dealt with for his misconduct, should also be reversed. But from thé confused condition into which the practice on this subject has fallen, the orders should be reversed, and the first order vacated, without costs to either party.

Davis, P, J., and Lawrence, J., concurred.