The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-03-15
The Street Commissioner War.
ACTION FOR ASSAULT AND BATTERY AGAINST MAYOR
SUPERIOR ooum-GKSER,L TERM.


CCURr-GKNERAL TERM.
MARCH 13.-Henry Green dga. Fernando Wood.-Mr
Field appeared appeal from the order of Judge
Pienepost, granted yesterday, dischargng previous
order Obtained by plaintiffs attorney, requiring the de-
PENDANT to appear and examined before the trial he
supposed the order @ erroneous, for two reasons
FIRST That that the plaintiff has the option Of examining
the defendant before the trathat option his aad not
the Courts; and the Court cannot take from him The
qualification in the 3els section of the Code applies to the
mo place and manner OF its exercise and not to the right
second. IL the Court had however, a dispensing
power, and could release the defendant from tho
operation Of the 39Ist section, "for good cause
shown," yet In this case there Is no good cause
shown for not examining tho defendant The rule
established by the Code that tho plaintiff has right TO
examine the defendant before The TRIAL This wss intro
duced because the discovery which could In most cases
be obtained BY bill in Chancery, was abolished, and
Tho defendant must undoubtedly show that he comes
within a just exception.
for other ouirsges epetrated on the same OCCASION upon
eleven other persons, FAR from diminishing, really in
creases the proprety Of examining the defendant After
he has been once examined, the Court relieve him
from further examination, they may then do with far
more proprety than they can do " now.
The defendants stipulation to attend ri the trial and
be examined as witness Is not ga good shown.
IL be, defendant can always relieve himself from
examination by Offering stipulation and the statute will
D. The purpose Of the statute WAS no, 70 sure OF
the DEFENDANTS testimony at tho trial. but 10 make OF
TX Dciore tne triA FORMER Dad been me purpose,
the conditional examination provided by section 800 would
have been sufficient
4. The stipulation does no, afford any equivalent 10
preseG examination. Suppose the defendant does not al
tend and IL Of the state what the plaintiff dor In
he 10 postpone his osee until the defendant Tho
Court cannot render Judgment against him for his
attendance and they could they could not by any pose
bity award 10 the plaintiff such amount Of damages
he might, perhaps, obtain with the aid Of the DEFENDANTS
testimony.
Mr. Dean IN reply said that he did not propose do.
fend the administration az Mayor Wood any
attack upon t. He believed that after the year had pass
ed would defend Hsef He contended thai the order
msde by Judge perrepont excusing present exsmina-
ton ,of the defendant, correcit the discretion Of
the Court Was properly exercisedand be proceeded 70
argue
First II the construction given by Judge Perrepon 10
the 3s1 section Of the Code correc then this appeal will
be dsmsed because the order, resting the discretion
OF the officer who made H. 10 not appealable Code, sec.
36e; Secly vs.. Chittenden, 10 Barb, 303)
Second The order Is not appcaabe, any aspect OF the
case under section 34e Of the Code does not Affect pro-
visional remedy. neither grants refuses trial,
susains or overrhes demurrer. II does not involve
the merits OF the action. IL does mot Affect substantial
right No decision OF Judge refusing 10 admit cumus-
tive evidence merely will be held erroneous could
any decision ~ 10 tn order Of prof. or the convenience Of
parties witnesses.
Third The provision OF section 3o1 as to tho order 10
msde ION good cause shown by the Judge, relates 20
the examination and not 10 the length Of notice Of tho
time and place OF examination. I. The term "other.
wise" relates 70 manner and not 70 time. . n "oher
wse' relates W the notice only, then may ton good
shown be dispensed with entirely. g. The whole
provso Ia for the benefit OF both parties and allows
every party TO the action TO show Why the examine
ton should be had n the trial or before H.
Fourth Tho 39oh 3oist and sod sections were designed
TO place an adverse party In the situation In respet
to the right Of the opposite party TO examine him any
other witness.
Flh The discretion Of the Judge who made this order
was wisely exercised
Decision reserved.