Smith v. MacDonald.

therefor exist must be shown by affidavits to the court or judge. And how is it possible for the court or judge to be satisfied that sufficient grounds therefor exist except by a disclosure in the affidavits of the evidence by which the plaintiff proposes to establish the facts in his complaint, and which, if established, entitles him to the injunction? It seems to me, therefore, that an affirmation in an affidavit, upon informȧtion and belief, without giving the evidence upon which that belief is founded, is entirely nugatory, and presents to the court nothing upon which it can act.

I am aware that it is a common form of drawing an affidavit, but I think upon a moment's reflection it

will be seen that the distinction which I have sug.

gested between an affidavit and a complaint exists; and it must be preserved. I think, therefore, that all the affirmations in the affidavits upon which the order for the examination of the defendants were founded be ing upon information and belief, and the affidavits not stating any of the evidence upon which such belief is founded, there is no evidence that any cause of action whatever exists in favor of the plaintiff against the defendants sought to be examined, and the order for such examination should be vacated, with ten lars costs of motion.

Order accordingly.

dol

SMITH v. MACDONALD.

N. Y. Superior Court; Chambers, 1876.

EXAMINATION BEFORE TRIAL.-SUBPOENA DUCES TECUM.

A party examined before trial, under sections 390 and 391 of the Code of Procedure, may be required by subpoena duces tecum to

*Code of Pro. §§ 219, 220.

Smith v. MacDonald.

produce books and papers, but they will be used upon the examination in the same way only, as if so produced on his examination as a witness at the trial.*

William Smith sued Robert Macdonald, in this court, for damages for an alleged breach of duty as a factor.

Desiring to obtain an examination of the defendant, and of his books, to enable him to prove that defendant did not sell in a proper manner, and according to the usage of merchants, and with a proper discretion, and to learn the names of the parties concerned in the sales of the plaintiff's goods, and the method employed in the disposition of said goods, and the character of the sales, the plaintiff obtained an order for the examination of defendant, after the cause was at issue; and with the order, served a subpœna duces tecum, containing the following clause:

"And that you bring with you and produce at the time and place aforesaid, your ledgers, cash-books, sales-books, blotters containing entries of goods sent or consigned you by the plaintiff, or relating in any way to the same, also, the auctioneer's returns of sales, of any and all goods of the plaintiff so sold; also all letters of the plaintiff to you since July 1, 1872. And all other books, papers, memorandum and writings relating to the business heretofore done, between yourself and the plaintiff, or containing any entries relating to the same, now in your custody, and all other deeds, evidences and writings which you have in your custody or power, concerning the premises."

Defendant refused to produce his books, &c.

SEDGWICK, J.,-Stated that it had been ruled in this court, that such a subpoena conld not be used on the examination of a party before trial, and adjourned the

* De Bary v. Stanley, 5 Daly, 412, opposed.

Smith v. MacDonald.

examination to give opportunity for argument of the question. After argument, and reserving the question for consideration, the learned judge held that the subpoena should be obeyed, and the examination proceeded with.

Mr. Blumenstiel, for defendant, made a formal motion to set aside the subpœna.

M. M. Budlong, opposed, besides the cases cited in the following opinion, cited: Brett v. Bucknam, 32 Barb. 655; Bonesteele v. Lynd, 8 How. Pr. 226, 352; Garighe v. Losche, 6 Abb. Pr. 285.

SANFORD, J.-The defendant contends that the only mode in which his adversary can before trial secure evidence contained in the books of account kept by him or in documents of which he has the exclusive possession is by an application for "discovery" under section 388 of the Code and the requirements of Supreme Court Rules 18, 19 and 20. In other words, that the plain and express provisions of section 390 and 391,which authorize compulsory examination of a party as a witness at the instance of the adverse party before trial, in the same manner and subject to the same rules of examination as any other witness,―must be rejected as repugnant to or inconsistent with the privilege accorded by section 388,-under which in certain cases an inspection and copy of books and papers containing ev idence relating to the suit, may be obtained through the order of the court, or a judge or justice thereof, in

their discretion.

It is a settled rule of construction, that if there be a discrepancy between the statutes or different parts of the same statute, such an exposition of them should be made as will enable both to operate and have effect.

But I think there is no discrepancy between the two sections of the Code, which prescribe the remedies now in question. The purpose to be attained by one is en

Smith v. MacDonald.

tirely different from that contemplated by the other; and both may be properly pursued in the same cause, either concurrently or at different stages of the litigation, as the exigencies of the case may require.

The books and papers of which an inspection or copy is procured under section 388 do not therefore become evidence in the cause. The party producing them may not, by virtue of their production, use them as evidence in his own favor; and he at whose instance they are produced must, upon the trial, if he would put them in evidence, resort to the same process, and be subject to the same rule with respect to their production and admissibility, as if no such discovery had been made. But if called for and produced under a subpoena duces tecum they may be resorted to in the examination of any person as a witness, whether a party or not, and whether he be examined at the trial or previously; and it would be unreasonable and unjust to withhold that process merely because a discovery is also allowed under certain special circumstances.

But a subpoena duces tecum may not be used as the means of obtaining a discovery; and the party calling for the production of books and papers on the preliminary examination of a party or other witnesses before trial will be required to pursue the examination with respect to their contents in the same manner and subject to the same rules as if the trial were actually proceeding in court.*

In Edmonstone v. Hartshorn, 19 N. Y. 9 (1859, opin. by JOHNSON, Ch. J.), the plaintiff had examined a witness de bene esse, and by him proved certain letters. On the trial [by consent the deposition was not filed, but left in the plaintiff's hands till the trial] some of these letters were read in evidence Defendant's counsel called thereupon for the production of others referred to in the deposition, but not put in evidence. Defendant refused to produce them.

Held, that he was not bound to produce them. The court say: "If he [the plaintiff] desired and was entitled to the benefit of VOL. I.-23

I am aware that there is some conflict of decisions in the different courts on the question; but the conclusion at which I have arrived is amply sustained, not only by the informal direction of Judge SEDGWICK, already made in the case at bar (to which I should unhesitatingly defer, even were my own views in conflict with his), but by repeated adjudications in the appellate branch of this court, to whose authority I am bound to submit (People ex rel. Valentine v. Dyckman, 24 How. Pr. 222; Central National Bank v. Arthur, 2 Sweeny, 194; Central National Bank v. White, 37 Super. Ct. 297. This motion must be denied with costs. No appeal was taken.

MASON v. LIBBEY.

N. Y. Supreme Court, Second Department; Special Term, 1876.

SERVICE OF ORDER FOR EXAMINATION. UNLAWFUL ENTRANCE. A service of an order or process in a civil action, made by a private person by wrongfully entering the house of the person served, is illegal, and will be set aside.*

The plaintiff sued her mother, and having obtained an order and summons for the examination of the mother before trial, the plaintiff, being possessed of a key of the mother's house, went there, let herself in, and thus effected service of the order and summons to attend and be examined.

Chauncey B. Ripley, and A. B. Tappen, for defendant, moved to set aside the service on the ground

them as evidence, he should have procured a discovery or been prepared to give parol evidence of their contents."

*See also, Hager v. Danforth, 20 Barb. 16; rev'g 8 How. Pr.