New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-07-10
THE COURTS.
AN INTERESTING LEGAL QUESTION
TIE EXAMINATION OF A LTTIGANT KEPT wIruJS
ROUNDS.

BOUNDS.
Judge Gilbert NJ. Speir OF the Superior
Court has Just rendered important opinion relating
practice the examination Of witnesses parties TO
suit. The suit calling out the decision was brought
by william H. Kuoepfel against the Kings County Pre
Insurance Company and AlansOn Trask In resird TO a
controversy about the signs OF building. Before thu
suit was tried, the plaintiff sought to bring forward
Trask the suspicion that he knew something that
ne had not hitherto told. Mr.. Sullivan OF Sullivan
Kobb & Fowler applied to Judge speir several days
ago for order TO examine Trask This was granted
and an important question was discussed. Messrs
Rodman and Adams resisted the notion tho ground
that the Court had right To bring this up, and
cited opinion Of Judge Barrett IN the Of Hodkn
against the Atlantic and Pacific Railroad Company, re-
ported In Abbott N 5. Mr. Sullivan agreed that II no
had the right to call Mr. Trask under Section i0
Of the Code, and cited an opinion by Judge Cardozo
which dramatically opposed TO that OF Judge Barrett
The defendants counsel argued that the only right 10
examine a who is party to a suit on a motion loot
in a case arises under Section $50 Of tho Code, which
absolutely prohibits the examination Of party Ia any
other except "a prescribed therein
These two conflicting decisions OF Judges Barrett and
Cardozo have along for eight or ten years without
the question being taken up aud disposed o. Judge
spe decides in favor Of Judge BarretH3 construction
holding as follows:
There be n conflict OF authority whether ths
Court has power to appoint referee to take tue am
uaylt deposition OF party 10 an action on hooh
behalf OF the adverse party under The seventh supd
vision Of Section 401 of the Code. Judge taTnozD' IA
Fisk agt Chicago, Rock Island, and Pacific RiirOai
COmpany-3 Abb " s., 430-held such power was given
Judge Barrett held the opposite opinion In ADD. N =,
Odkin agt. Atlantic and Pdcitcic IA lrOad tOinpiby
The authority stands balanced. iii be supposed hat
the 4Ost section seventh subdivision furnishes ahtor
y for the action OF the Court II Is not only IN contra
section Of the CODE, Dut u absolutely
forbidden by It. That section declares tat no acton
obtain discovery under oath In aid OF the prosecution
or defense OF another shall be allowed nor shil
any examination VI party be had on Oehai OF he id-
verse party except In the manner prescribed Df th'
chapter" The section quoted falls under me sixth chhp
ter OF the Code che title OF whch IS EAahiui u
Parties" The 40lst section falls upder The the 5th chap
ter the title Of which - Motions ana orders ana Tug
section itself defines what motion u ana now anu
where made. IL will be that tue subject OF he eA
animation OF parties is tine appropriate heab ana II ho
examination OF party 10 an action Is apsoutey PIO
hllited on behalf OF the adverse party, II WOud 10
against all legal rules OF construction 10 luIcr dts
might be authorized under other sections OF the
Code falling under another and different ute not ueat,
ing OF parties to an acton. The tllc tnttcOlcy - ne
as the section s9 positively forbds any action In AID OF
tue prosecution defense Of another acuoh or any eA
animation OF party IN behalf OF the adverse party
except IN the manner prescribed by this chaPter'
The only reason suggested that suc1 power l. gwen IN
Section i arises from the OF the phrase contained
in the 7th subdivision, Any person" Hence ~ Is ia.
erred that this lnclu les party as vel as q WINES -
the title OF this chapter has no reference 10 pdro'
Is limited 10 the general subject OF Motions auu VI
ders," phrase used must be denhct 10 H.dn' un3
witness other than party 10 the acton - IL Cl,
does both from the context and the ute Inc lIonlD
lion l. not violated, and ne harmony or DOth seC"u,
thus scared. ully agree. therefore,, WIN JHstIIo
Barrett I'm his opinion and nave offered me anOsy -
unal reasons 10 those gwen Dy MN, ana Dtllt'S
exposition IL IN entire accord with the pocy OF e va"
in restricting the examination VI pLiu9s 70 al "'O
within proper bounds.