Opinion
May, 1893.
Alexander V. Campbell, for defendant (appellant).
Henry B. Ely, for plaintiffs (respondents).
The object of the action is to fasten a liability upon MacDonald, as undisclosed principal, for a debt actually contracted by Blair; and the avowed purpose of the proposed examination of MacDonald is to find out if Blair was in fact his agent. The plaintiff Burr swears that his "sole reason for the examination of MacDonald is to ascertain whether he had authorized Blair to act as his agent," etc.
If Blair was not the agent of MacDonald, then, obviously, the plaintiffs have no recourse against him, and so the desired examination is but an experiment to ascertain whether the plaintiffs have a cause of action against MacDonald. For such purpose the examination of a party before trial is not allowable. The provisions of the Code proceed upon the fact that the plaintiff has a right of action, and the examination of the defendant is authorized, as upon the trial, only to elicit evidence in support of that right; to establish, not to discover, a cause of action.
To entitle a party to an examination of his adversary before trial, it must appear that the "testimony of such person is material and necessary for the party making such application." Code, § 872, subd. 4. But it appears by the complaint that the plaintiffs have other sources of information and evidence as to Blair's agency for MacDonald, and particularly by the moving papers that Blair is a competent and accessible witness to establish such agency.
No adequate occasion exists, therefore, for the examination of MacDonald. "If from the nature of the action and the other facts disclosed, the judge can see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged, nevertheless, to make the order." EARL, J., in Jenkins v. Putnam, 106 N.Y. 272, 275.
It is not apparent, the contrary rather, that MacDonald's testimony will not be attainable at the trial, and this defect in the moving papers was, of itself, sufficient to defeat the motion. Williams v. Folsom, 7 N.Y.S. 568; Carter v. Good, 57 Hun, 116.
It is the right of a party to have the trial of his cause in due order and in open court, and only for obvious and adequate reasons may the right be partially defeated by the taking of testimony out of court or in advance of the trial.
Summarily, the case is this: After suit against Blair, the man whom the plaintiffs trusted, they discovered his insolvency; thereupon they bring this action against MacDonald on the possibility that he was Blair's principal, and now they seek, by an examination of MacDonald, to ascertain whether their conjecture as to his liability be a fortunate speculation. This will never do. Already the privilege of inquisition against an adverse party before trial has been pushed to the point of annoyance and oppression, but it has not yet been sanctioned as an instrumentality by which a baffled plaintiff may discover a responsible defendant. See interesting and instructive note, 1 Silvernail (Sup.Ct.), 2-55.
Order reversed, with costs and disbursements.
BOOKSTAVER and BISCHOFF, JJ., concur.
Order reversed.