New-York tribune., 1872-12-02
THE COURTS.
r,rr pp1r -corLD LITIGATION.

n
PLATED.
Judge Fancher on Saturday rendered his
decsion I'm the Eric suits against Jay Gould upon the
motion 10 vacate the order for an examination OF Wm
r. Trayers before referee 10 Will be remembered tna
this application was made the ground OF requiring
the testimony OF Mr. Travers at the argument 10 DC
heard before the same Judge the motion to vacate the
order OF against Jay Gould, In the ten million SUIT
recently instituted by tho Erie Railway Company The
objection was not 80 much 10 tho examination but
10 the form OF It. the desire on the part OF Mr Gouds
counsel being 10 put him through searching examina
on upon tho subject OF the recent "eorner" In North
Western upon the claim that the facts sought 10 DC
gained had an important bearing upon the suit ana the
opposition TO this being that 1t was an unnecessary III
qury into Mr. Trayerss private affairs, and that a that
was necessary was for him to written iDterroga
tories and draw up an affidavit from the questions ana
answers Judge Fancher grants the motion as loo"S'
The seventh subdivision OF section O1 OF the code pro
ydes that when any party pendY nd t he
for him TO have the affidavit OF any person VINO sdn
have refused to make tfe same me % or deposition
Of such person.. This section furtner pto'ues ."s m
"may be subpenaed and compelled 10 aItend hnu
make an affidavit before such referee the as before
referee to whom II Is referred 10 try an issue "en
application Is made under this SUBDIVISION OF sec
ton lO for an order the paper which 1t is applied Tor
should show that the party making the apPncaton IN
tends 10 make oppose motion, also tat u Us neces
sary for such purpose for hiin 10 nave Tue t oh ~
person whom he should name ana aIsO tilt 9uu
that the party TO the action who makes Application
should know be advised what sort OF an aluaFt 10
names. and IL is also apparent that before such
person refuse TO make u the same , snoui1
be drawn and presented 10 him, Win a iequosv
that he should sign to f. unless, on being ap
piled TO, be refuses 10 make anY aindaVt at an 40 ny
that the statute is so far reaching as to allow the referee
TO treat the order appointing nn as a 20 t to
compel the person whose aidaylt Is sOnet 10 suult W
general examination touching the affairs IN eontro-
yery in the action s to lose sight OF The purpose as
well as the language OF the statute. Had the law
language would have been different from that OF
this section, and the plain meaning would have re-
yeaed such intention. Tho purpose OF the law u not
TO compel such an examination II ls true tlat Wneh e
person whose affidavit sought attends before Tue Eel
cree aud informed Of the particular matter as TO Whch
he requested 10 make deposition, there IS no oDlec
ton 10 the form Of proceeding and the statements may
be taken down and to In the form OF narrative
deposition or OF questions and answers; Dut az the pro
ceedng is not ordinary examination OF witness, anu
proper that any Of the parties TO the action shoua
80 into general examination before the referee, ah9
thus permitted to procure er p1re testimony ireed
from the tests and explanations OF cross-exatninatlon
affidavit to be used notion and the athdlVlt should
o code has not vet reached the point of
allowing an unrestricted examination at such stage IN
the action opened so wide the opportunity Ior hs
ing expedition Making the affidavit provided for In tie
section under Is not examination Where
examination takes place, either before rla or ar me
trial. the counsel for both pUrles are present aud the
rules Of examination applied. This Is not the case
when affidavit Is sought Tor the purpose OF motion
IL the party seeking tho affidavit for motion does not
fully know all the facts 10 be embodied In IT, and the
person 10 be examined offers to receive aud
answer written questions and answers as was
offered IN this case it is al that can reasonably
be required and such method OF stating the facts IN
aidayt is, 10 seems 20 me, emncnty proper Tue
statute that such person may be subpenaed and
compelled to attend aud make an affidavit before sucn
reerce." 10 does not say that lie shall submit TO an
examination as witness Az exaIHuauon oe IeIte esSs
Is provided for BY the revised statutes, wbl from IN
TRINITY, Sickness contemplated ahscnce from tue
state there reasonable grounds 10 apprehend the
witness VIII not be able TO attend the trial. The
code procedure has also made provision for the exam
naQon OF party TO tho acton, ana " may be ~ the
option the party claiming 10 at the trial or at any me
before the trial, after issue E joined Inero are also
statutory prOyislOns Tor petpctuatns ana Tor taxing
commission testimony In certain cases bat none OF the
conditional examinations pdre. Thcy are made
on notice Wicn IS ustiiy psegrlue by the order Whni
obtained and IN conducting them the rules OF evidence
and the right OF crosse examination alc observed.
think the seventh subdivision of section 40
ons aud Orders" and In the section entitled "Dehni-
ton OF q Motion, Motions, HOW and Nnen Made was
intended 20 allow an ~ PHte eNanlhaloh OF witness
On the contrary IL intended to give the right 10
party TO action TO require an ah1ay!t or deposition
which Is shown to be necessary to make or oppose
motion, and when it has been refused by the person
t.at the affidavit IS necessary, uni IS no has
ONO knowledge or reliable Information OF what
{ might properly contain. / do not think there
been such refusal IN this case and, therefore, the
order appointing referee 10 take to aiayIt OF W. X
Trayers should be vacated III There should be refusal
20 make affidavit hereafter, on NJ. Ilaycrs declines
20 answer the questions which the dclcuddnpo counsel
submit in writing or TO sign ana swear 70 the ati
dayit 10 be drawn up from such qucaOus aud answers
may be applied Tor and would be proper. The motion
10 yacate the order u granted, With liberty 10 make
further application, II necessary
The Erie Railway Company preparing The evidence
collected from smith, Gould, Marlin 4 CO.'S books for
further important suits TO be begun against Jay Gould
They Will be of the same general character rs the
;0Jco,coO suit, and Will be prosecucd vigorously.