Schepmoes v. Bousson. tion must show the existence of a cause of action or a substantial defense, as the case may be, and the particular facts sought to be elicited; the status or right of the party seeking the discovery, entitling him to maintain it; and that the matter sought to be discovered is, upon the pleading or case presented, material (Bailey v. Dean, 5 Barb. 297; McIntyre v. Mancius, 16 Johns. 592). It is not indispensable that it be absolutely necessary (March v. Davison, 9 Paige, 580; Vance v. Andrews, 2 Barb. Ch. 370). But it was not permissible through such a proceeding to ascertain the nature or grounds of the claim made against him, so as to discover if he has any defense thereto (Deas v. Harvie, 2 Barb. Ch. 448); its true province was to compel a party to a legal controversy to disclose matters within his knowledge or his power of informing himself and material to the applicant's prosecution of his action or defense, so as to enable the latter to form his pleading or prove his case, but not to get information as to whether he had any case, and much less to explore his adversary's case. It must not be a mere fishing proceeding, instituted with a view to pry into the case of the opposite party, as in Newkirk v. Willett (2 Johns. Cas. 413) wherein Chancellor KENT, describing the complaint, says: "It amounts to this; the respondent has sued us at law, and we don't know for what, and, therefore, we ask a discovery beforehand, although we conclude he has sued us upon some groundless pretence." The principles are well stated in 1 Abb. N. C. 332, in the note, on what facts or circumstances rights of discovery are based. In Carr v. Great West. Ins. Co. (3 Daly, 160), C. J. DALY, at general term, held that the examination provided for by section 391 of the Code was limited to cases where a discovery would have been previously ordered in equity in aid of the prosecution or defense of the action, and in a note he states that rule 21, subse Schepmoes v. Bousson. quently adopted at the convention of the judges in 1873, of which convention he was a member and concerned in framing this provision, was but an exposition of this construction assumed and adopted by the judges. Such right of discovery of any fact material to the case of the party seeking it was not confined to one wherein the testimony sought was necessary or indispensable, but was available when it was material to the party's case (Marsh v. Davison and Vance o. Andrews, supra). The right to so examine the adverse party to any fact material to the case of the applicant, under the rules that governed the proceeding under a bill of discovery, seems perfectly consistent with such a construction of the 21st rule, and does no violence to it, except so far as it might be construed to deny any right to such examination before pleading (Glenney v. Stedwell, supra). The absolute right to require any person to attend and be examined as a witness on behalf of the party subpœnaing him, always depended upon the fact that the witness was personally cognizant of something material to the case of that party, and an action against him for non-attendance at the trial could not be maintained unless it was shown the case of the party failed for want of such testimony (Pearson . Iles, 2 Doug. 556); and the lack of such an allegation or proof was a defense, as well against the remedy given by statute as for special damages (Maddison v. Shore, 5 Mod. 355; S. C., 1 Salk. 206; Amey v. Long, 9 East, 473; Hermans v. Williams, 11 Wend. 636). This consideration would not, however, prevent the exercise of the power conferred by these provisions of the Code to require the examination of a party as to any fact material to the case of his adversary, as their special design was thereby to avoid the expense and trouble of procuring the attendance of other witnesses at the trial, when the facts sought to be established were within the knowledge of Schepmoes v. Bousson. the adverse party. Notwithstanding the party summoned may be so examined, he is yet but the witness for the adverse party (Code, § 390), and is subject to the same rules of examination as any other witness called by his adversary. It is true, some such latitude of examination may be permitted as is ordinarily allowed on the examination of a witness known to be adverse and hostile; but otherwise the directions of the Code are absolute, that he is subject to the same rules of examination as any other witness called in the same interest. Such rule of examination of a witness called on a party's own behalf allows no initiation or adoption of a course of pure cross-examination, and far less were the provisions of the Code intended for any other purpose than to enable the party to prove by his adversary some facts tending to establish his own case. They afford no countenance for their being used for inquisitorial purposes, or as means to pry into the adverse case, or with any view to enable a party to prepare for trial through discovery of the evidence, circumstances or witnesses by which it is intended to be supported and maintained. Within the limits before indicated it is, however, a right which, upon a proper case presented, the order for the examination should be accorded, and the testimony of the adverse party required to be given, to the extent of his knowledge of the facts inquired of, material to the case of his adversary; but to that it ought to be limited, and especially disallowed as to questions peculiarly appropriate to a cross-examination. The application in the present case by the defendant, to procure the examination of the plaintiff before trial, is founded on her affidavit. [The learned judge here stated the substance of the affidavit as above given.] She does not disclose the nature of her defense, as required by 2 R. S. 393, § 2, subd. 2, or how any fact Schepmoes v. Bousson. within plaintiff's knowledge can be applicable or material. It is manifest this application lacks every essential element of such a proceeding as justified a bill of discovery before the Code, or any license of examination which it affords, and cannot be otherwise characterized than as an inquisitorial and fishing proceeding, such as is condemned by all the authorities applicable to the subject. All the matters which she thus seeks to elicit, by way of discovery or proof from her adversary, are such as he is, in the first instance, bound to maintain and prove as essential to his case-to wit, the existence of the agreement, its breach, and the extent of his consequential damages resulting therefrom -before she is in any way called upon to enter upon her defense. It is notorious that such proceedings, instituted for such purposes, seldom result in the offering on the trial of the testimony thus taken, by the party procuring the examination, and that the examination thus had is ordinarily but for inquisitorial purposes and to pry into the case of an adversary. In my opinion, they ought not to be encouraged or allowed, except when it appears they are adopted in good faith, and purely for purposes of discovery of matters resting peculiarly in the knowledge of the adverse party, and the testimony sought is material to the case of a party seeking the examination, but never for the mere purpose of eliciting the grounds or sources of the adverse claims or the evidence by which it is to be established. I find no authentic report or evidence of any ruling or practice of any other of the courts of record of this State (as has been invidiously suggested) upon which this court can be regarded as backward in any just administration of those administrations of the Code, or as failing to afford any such proper means of "scraping the conscience" of an adversary before trial, as the law affords. This application is denied. ANALYTICAL INDEX то ALL POINTS OF LAW AND PRACTICE CONTAINED IN THE STANDARD REPORTS OF NEW YORK ISSUED DURING THE PERIOD COVERED BY THIS VOLUME ; Viz.: 61, 62 and 63 NEW YORK REPORTS; 7 and 8 HUN'S SUPREME COURT REPORTS; 40 NEW YORK SUPERIOR COURT (JONES & SPENCER); and 1 ABBOTT'S NEW CASES. [For the greater convenience of the reader, all the decisions, whether on questions of practice or in other departments of law, are included in this Index, instead of presenting only a digest of points of practice, as in the Practice Reports hitherto published. The classification is the same as in Abbott's New York Digest.] ABATEMENT AND REVIVAL. [tives, for accounting. Halstead v. Abatement of an action to enjoin Cockcroft, 40 Super. Ct. (J. & S.) infringement of trademark. Republic of Peru v. Reeves, 40 Super. Ct. (J. & S.) 316. 519. ABUSE OF PROCESS. Complaint in action for. Beb Of action for wrongfully taking, inger v. Sweet, Ante, 263. -by defendant's death. People v. Starkweather, 40 Super. Ct. (J. ACCORD AND SATISFACTION. & S.) 453. What constitutes,-of promis Of ejectment,-on death of one sory note. Pardee v. Wood, 8 plaintiff. Hasbrouck v. Bunce, 62 Hun, 584. N. Y. 475; rev'g 3 Sup'm. Ct. (T. & C.) 309. ACCOUNTING. Skid Prevented by stipulation. Cox By surviving partner. v. N. Y. Central & H. R. R. R. Co., more v. Collier, 8 Hun, 50. 63 N. Y. 414; rev'g 4 Hun, 176;| In what case action for, will lie S. C., 6 Sup'm. Ct. (T. & C.) 405. as to decedent's.estate. Chipman Revival of action in favor of ore. Montgomery, 63 N. Y. 221; against executors and representa- affi'g 4 Hun, 739. |