#### Vincent A. Witcher, Resp’t, *v.*The Tribune Association, App’lt.

*(New York Superior Court, General Term,*

*Filed April 16, 1891.)*

Depositions—Examination before trial.

Whenever it is made to appear that the party sought to be examined is a non-resident, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make the order. Where it affirmatively appears that such service cannot be made within the state, the order should be refused.

(Ingraham, J., dissents.)

Appeal from order of the special term, denying defendant’s motion for an order that the plaintiff appear and submit to an examination as a party before trial and that in the event of the plaintiff’s failure to appear for examination as directed, the trial of this action be stayed.

*Sackett & Bennett,*for app’lt; *Maltby, Bayne & Marshall,*for resp’t

Freedman, J.

The application of the defendant for an order directing the plaintiff to appear and submit to an examination be*365fore trial as a witness on behalf of the defendant, was made on notice to plaintiff’s attorneys and on the hearing affidavits were read on both sides. The court was, therefore, in the position in which it would have been if an order for the examination had been previously granted *ex parte*and the plaintiff had moved, on affidavits and on notice to the defendant, for the vacation of the order.

In such a case it has been, ever since the decision of *Levy*v. *Loeb,*44 Y. Y. Supr. Ct., 291; affirmed 75 N. Y., 609, the practice of this court to require that the papers in support of the application shall fully establish, by facts and circumstances, the necessity and materiality of the examination sought and the good faith of the application, and then to exercise a sound discretion as to whether upon all the facts disclosed the examination shall or shall not be had. This practice is also sanctioned by the decision of the court of appeals in *Jenkins*v. Putnam, 106 N. Y., 272 ; 8 N. Y. State Rep., 710. Of still greater importance is the question of jurisdiction whenever the power of the court is challenged in an important particular.

In the case at bar it was shown in the moving affidavit, as well as by the affidavit read in opposition, that the plaintiff is not a resident of this state, but resides in or near Riceville in the state of Virginia. It was also shown by the opposing affidavit that the plaintiff has not been within this state since the commencement of the action and that he does not intend to come here before trial, if then.

Section 873 of the Code of Civil Procedure expressly provides that service of the order for the examination of a party must be made within this state, and § 886 prescribes that if the person to be examined is a resident of the state he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person, and that, if he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs.

The court possesses no inherent power to order the examination of a party before trial at the instance of an adverse party. The jurisdiction is purely statutory, and depends solely upon the provisions of the Code.

Whenever, therefore, it is made to appear that the party sought to be examined is a non-resident, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make what appears to be a useless order.

In the present case no such proof was adduced, and moreover it affirmatively appeared that service of the order cannot be made within the state. Irrespective therefore of the question of the good or the bad faith of the application, the order was properly refused for the reason stated. If it had been made *ex*parte, and the plaintiff had moved for its vacation upon affidavit showing that he is a non-resident, and that service cannot be made upon *366him in this state, the court would have been bound to vacate it under the decision of the general term of this court in *Dunham*v. *The Mercantile Mut. Ins. Co.,*44 N. Y. Superior Ct., 387; S. C., 6 Abb. N. C., 70. There is no power in the court to require the plaintiff, as a resident of another state, to come to New York from such state for the sole purpose of being examined.

The case of *Dudley*v. *The Press Publishing Co.,*53 Hun, 347; 25 N. Y. State Rep., 32, does not call for a different conclusion. It does not appear that Dudley was shown to be a non-resident. 'The claim was that he had left the state of Hew York and thus prevented service of the order. Moreover, he had not moved to vacate the order for his examination, which had been granted *ex parte.*It was for these reasons that the order denying the motion -of the plaintiff in that case to vacate or limit an order extending the defendant’s time to answer was affirmed, and from the opinion delivered on that occasion it seems that the court was not called upon and did not consider the effect of §§ 873 and 886 of the Code of Civil Procedure.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J.

I concur. The appellant’s counsel disclaimed any intention to maintain a right to an order of the ordinary kind for an examination before trial of a party.

Ingraham, J. (dissenting.)

The examination of a party before trial, at the instance of the opposite party is regulated by the Code. Section 873 provides for granting such an order. It is there provided that the judge to whom the affidavit required by § 872 of the Code is presented must grant an order for the examination, and that the order must require the person who is to be examined to appear before the judge for the purpose of taking the examination at a time and place therein specified.

There is no provision as to notice of the application, and the usual practice is to apply *ex parte,*but there is no reason why a party should not give notice that he intends to apply to a judge of the court at a time and place named for an order requiring the opposite party to appear and be examined, and the fact that notice was given does not deprive the party making the application of his right to the order. If the affidavit on which the application was made complied with § 872 of the Code, the judge, to whom the application was made was bound to grant an order requiring the plaintiff to appear before him and submit to an examination at a time and place therein named.

I think the affidavit on which the order was applied for was sufficient.

The provisions of § 872 were complied with, and it is clear that the examination of the plaintiff was material and necessary, and that the defendant intended to read the deposition upon the trial of the action.

The judge to whom the application was made should, therefore, have granted an order for the examination of, the plaintiff. The balance of the relief asked for was properly denied.

*367It did not appear but that the plaintiff would appear and submit to an examination if he was ordered to do so by a judge of the court It is true he was a non-resident, but until an order was duly granted and evidence presented to the court that he could not be served and had refused to appear, no order of the court, should be made staying the proceedings until he should so appear.

It is not intended to intimate an opinion as to whether or not the court should grant an order staying proceedings until the plaintiff should appear and submit to an examination already ordered, but until an order has been granted and the plaintiff has failed to appear, there was no foundation for an application to the special term of the court for such an order. There can be no doubt as to the power of the court to stay proceedings in an action in case of the disobedience of its order, whether such a stay would be granted or not, in the sound discretion of the court.

I think the order should be reversed so far as it refused to grant an order for the examination of the plaintiff, and affirmed so far as it denied the defendant’s motion for a stay of proceedings, without costs of this appeal to either party.

Order affirmed, with ten dollars costs and disbursements.