#### Abraham B. Loewy, Respondent, *v.*Morris Gordon and Harry Gordon, Appellants.

Second Department,

December 30, 1908.

Deposition — examination of party before trial — practice — requisites of moving papers—definition.

As section 870 of the Code of Civil Procedure, providing for the taking of the deposition of a party before or during trial, creates or enlarges a privilege previously unknown in common-law actions, the deposition must be taken in the manner “prescribed” by the statute, and cannot be done in any other way even though it be as good or better.

Hence, the moving affidavit must contain the matters prescribed in section 872 of the Code of Civil Procedure, or there is no authority to grant the order. The defects in such affidavit cannot be supplied by reference to all the pleadings and proceedings in the notice of motion, if the affidavit itself does not refer to or incorporate the pleadings.

The word “prescribed” defined.

Gaynob, J., concurred in result only, with opinion.

Appeal by the defendants, Morris Gordon and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21th day of September, 1908, granting the plaintiff’s motion for an examination of the defendants before trial and for an inspection of their books.

*Joseph Wilkenfeld,*for the appellants.

*Morris*Meyers, for the respondent.

Woodward, J.:

The plaintiff brings this action to recover commissions alleged to have been fraudulently withheld from him by the defendants, who under various contracts running back to 1901, were under obligations to keep track of and to account to him for sales made within the territory assigned to him upon which he was entitled to commissions whether the sales were made by the plaintiff directly or not. He has been granted an order for the examin|tion of the defendants, together with their books, papers, etc., in connection with such examination, and the defendants appeal from such order.

*460Section 870 of the Code of Civil Procedure provides that the *“*deposition of a party to an action pending in a court of record * * * may be taken at his own instance or at the instance of an adverse party, or by a co-plaintiff or co-defendant at any time before or during the trial as prescribed in this article.” The word “ prescribed ” has a well-defíned legal meaning; it means to “ lay down authoritatively as a guide, direction, or rule; to impose as a peremptory order ; to dictate; to point; to direct; to give as a guide, direction, or rule of action ; to give law.” (22 Am. *&*Eng. Ency. of Law [2d ed.], 1179, and authorities cited in notes.) Words having a precise and well-settled meaning in the jurisprudence of a country are to be understood in the same sense when used in statutes unless a different meaning is unmistakably intended *(Perkins*v. Smith, 116 N. Y. 441), and when a statute giving a privilege unknown to the common law or enlarging a privilege, authorizes something to he done in the manner therein prescribed, it, by necessary implication-forbids that it shall be done in any other way, even though that other way should be just as good or better. Section 872 provides that the “ person desiring to take a deposition as prescribed in this article may present to a judge of the court in which the action is pending * * * an affidavit setting forth as follows : ” (here are set forth seven subdivisions telling what this affidavit shall contain). Section 873 prescribes that the *“*judge to whom such an affidavit is presented must grant an order for the examination if an action is pending,” etc. It is only upon the presentation of such an affidavit — the affidavit prescribed by the previous section — that the judge must grant the order, and he has no authority to grant it upon any other conditions. In the case now before us it is not contended that the affidavit presented to the judge contained the matters prescribed by section 872, but it is urged that as the notice of motion pointed out that it was to he made “ upon the annexed affidavit of Abraham B. Loewy, the plaintiff herein, and upon all the pleadings and proceedings had herein,” and as the necessary facts may he gathered from such pleadings, the moving papers are sufficient, and that the defendants are technical in their objection^ . But a notice of motion is no part of the affidavit; the affidavit itself does not refer to the pleadings in any way, or make them a part of the same, and, in any event, the statute does not *461prescribe this as the way to give power and authority to the judge to grant the order. It requires an affidavit setting out the facts called for by section 872, and until such an affidavit has been made and presented to the judge there is no basis whatever for the granting of an order for the examination of an adverse party. The right of a party presenting such an affidavit, in harmony with the provisions of rule 82 of the General Rules of Practice, is absolute *(Shonts*v. Thomas, 116 App. Div. 854, 855, and authorities there cited); but the modern attitude of the court upon these orders does not justify granting or sustaining them where the moving party has not complied with the conditions prescribed. The statute grants a favor, and if the party moving desires the favor he must comply with the conditions prescribed ; that is the clear requirement of sections 870, 872 and 873 of the Code of Civil Procedure, and because the plaintiff has failed to comply with the conditions the order appealed from must be reversed, with costs.

Jenks, Hooker and Hiller, JJ., concurred; Gaynor, J., concurred in separate opinion.

Gaynor, J. (concurring in result):

The order was not obtained *ex parte,*but on notice of motion. The plaintiff avers in his affidavit on which the order was obtained “ that the sole and only purpose of such testimony and the request of the examination of the defendants herein is to prepare for such trial ” ; and the motion should have been denied for this. A party cannot be examined before trial for any such purpose *(Diefendorf*v. *Fenn,*125 App. Div. 651). The affidavit seems to have been prepared with very little, if any, familiarity with section 872 of the Code of Civil Procedure and such of the decisions thereunder as are any longer controlling. But I am not prepared to vote to reverse the order on account of the other deficiencies in the affidavit which the appellant points out, viz., (1) that it does not give the name and residence of the defendant’s attorneys, (2) or state the nature of the judgment demanded, (3) or of the defense, *i. e.,*answer. The complaint and answer were made part of the papers on which the motion was made, and they show all of these things much better than an affidavit could do it. And why, if it comes to that, should the affidavit state the names of the parties and of their attorneys— *462for what purpose ? The names of the parties are in the title, and those of the attorneys on the pleadings, and the addresses of the parties and attorneys are only so much verbiage. Section 872 prescribes it, but its provisions are taken from the old chancery rule for bills of discovery. When a party could not examine an adverse party in a common law action, but had to go into chancery with a bill of discovery, there was a reason why the bill should describe the pleadings in the common law action and give the names and addresses of the parties thereto and of their attorneys, but now that the examination is had in the action itself, and the entire record ispresent, there is no reason therefor, and the lack of such matter from the affidavit may well be excused when the order is obtained on the pleadings also. In such case it becomes mere verbiage. The broad meaning of the section is that such matter shall be shown before the Judge to whom the application is made; and if shown by the best evidence, secondary evidence of it becomes unnecessary. Even where property rights are at stake, a substantial compliance with a statute prescribing the steps to pursue suffices. The letter often killeth. Very little should suffice to dispense with a useless statute requirement; indeed, in the case of proceedings divesting title to property, a requirement which could in no way safeguard the rights of the owner, and is useless, is disregarded.

Order reversed, with ten dollars costs, and disbursements, and motion denied, with costs.