The New York herald., 1872-12-01

fused to make the andavit. II is manifest that
the the party to the action who makes application
should know or be advised
WHAT SORT or AN AFFIDAVIT
is necessary, and that IL can be made by the per-
such person can refuse to make it the same should
be drawn and presented to him, with request
that he should sign and swear to 1t, un-
MAKE max any % afdavit is at all II 70 says say that
the statute is SO far reaching as to
ing him as a commission to compel the person
whose aidavit is sought to submit to general ex-
amlnation tonching the anairs IN controversy Ia
the action Is to lose sight OF the purpose as wen
as the language of the statute. Had the law max
ers Intended to allow such an examlnatlon M their II
this section, and the plain meaning would have re-
vealed such an intention. The
PURPOSE OF THE LAW
is not to compel such an examination. IL is true
that when the person whose anidavit is sought at
tends before the referee, and Is informed OF the
particular matter as TO which he is requested TO
make deposition, there Is no objection to the
form OF proceeding and the statements may be
taken down and sworn to In the form OF a Darra-
tive deposition or OF questions and answers; but
az the proceeding Is not an ordinary exam
examination is not permissible it does not seem
proper that any OF the parties to the action should
go into general examination before the re-
ierec, and thus be permitted to procure ear Ddrte
testimony freed from the tests and explanations
of a crossexamination. He is not there for such
purpose but only to obtain an afldavit to be used
on motion, and the atidavit should pe limited to
the subject of the motion. The rapid stride OF
CO code amenamem,s mas not YET reaoaed ane point
stage In the action nor opened SO wide the oppor-
tunity for
FISHING EXPEDITION
Making the afiidavit provided for in the section
under consideration Is not an examination Where
an examination takes place, either before trial or
at the trial, the counsel for both parties pres
ent and the rules OF examination are applied.
This is not the case when an arndavit
is sought for the purpose OF motion II the party
sesking the afidavit for q motion does not fully
know all the facts to be embodied IN II, and the
answer written questions and answers as was
offered in this case IL is all that can reasonably be
required, ana such method OF stating the facts IN
the aihdavit is, as seems TO me, enlnently pro-
per. The statute says that such person "may be
subpGnaed and compelled TO attend and make an
affidavit before such refereen 1t does not say
that he shall submit to an examination as wit
ness. An examination de be,ae esse is provided for
by the revised statutes, when from infrmity or
sickness, or contemplated absence from the State,
there are reasonable grounds to apprrhend the
witness will not be able TO attend the trial. The
CODE OF PROCEDURE
has also made provision for the examination or a
party to the action, and 1t may be at the option OF
the party claiming 1t aT the trial or at anv time be-
fore the trial. after issue is joined There are also
statutory provisions for perpetuatng and for taking
commission testimony in certain cases; but
none OF the conditional examinations are er p1rte.
They are made on notice which is usually pre-
scrlbed by the order when obtained, and In con-
Quoting them the rules OF evidence and the right
Of cross examination are observed. cannot
think the seventh subdivision OF section 40l OF the
Code, which Is found in the chapter entitled "Mo-
tlOHS anu OTOeTs, anu III tHC SeCtAOu cuLltitu
| definition OF a Notion Motions, How ana When
| Made,n was intended to allow an eT Dd1'ie examl-
! nation OF witness; on the contrary IL was in
tended to give the right to party to an action to
| require an affidavit or deposition, which Is shown
to be necessary to make or oppose motion, and
when it has been refused bv the person
VINO should make IL the party cannot
show that the aflidavit is necessary unless he has
some knowledge or reliable Information OF what
IL might properly contain. / do not think there
has been such refusal in this case and therefore
the order appointing referee TO take the a1ldavit
OF w. II. Travers should be vacated. Ii there
should be refusal to make an AFFIDAVIT hereafter.
or Mr.. Travers declines to answer the questions
which the defendants counsel may submit in
writing, or to sign and swear to the afdavit to be
drawn mp from such questions and answers, new
order to appoint referee to take the aildavt may
be applied for and would be proper. The motion
to vacate the order IL granted, with liberty to make
a further application If necessary.