396. (350.) A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination as if he were named as a party.

397. A party may be examined on behalf of his co-plaintiff or of a codefendant, as to any matter in which he is not jointly interested or liable with. such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party; but the examination thus taken shall not be used in the behalf of the party examined. And whenever in the case mentioned in sections 390 and 391, one of several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action, or defence, and shall be so received.

Was not in the Code of 1848. Was first inserted on the amendment of 1849, but dates, as it stands, from 1852.

In 1849, the first two sentences formed one only, and that much less explicit, as regards details. In 1851, they assumed their present form, with some slight verbal difference, the present third sentence being expunged. In 1852 that sentence was restored.

CHAPTER VII.

Examination of Witnesses.

§ 398. (351.) No person offered as a witness shall be excluded by reason of his interest in the event of the action.

Before entering on the subject of the next section, it may be remarked generally that, in the original Code, provision was made by sections 353 to 356, for taking the examination of witnesses, residing more than one hundred miles from the place of trial, by means of a proceeding analogous to that for taking an examination de bene esse. On the revision of 1849 the whole of these provisions were stricken out, and have never been restored.

§399. (352.) A party to an action or special proceeding, including proceedings in surrogates' courts, and proceedings for the summary recovery of the pos session of land, may be examined as a witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination as any other witnesses; provided, however, that the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf, in respect to any transaction or communication had personally by said assignor, or said party, respectively, with a deceased person, against parties who are the executors, administrators, heirs-at-law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action immediately from said deceased person, or have been sued as such by the executors, administrators, heirs-at-law, next of kin, or assignees. But where such executors, administrators, heirs-at-law, next of kin, or assignees, shall be

examined on their own behalf in regard to any conversation or transaction had between the deceased person and said assi gnor, or said party, respec. tively, then the said assignor or the said party may be examined in regard to such conversation or transaction, but not in regard to any new matter.

Amended, as it now stands, in 1862, that amendment restoring to some extent the restric tions imposed previous to 1860, and omitting altogether the provision then made with reference to the law of husband and wife.

The changes in this section have been so numerous and so radical. that it may be expedient to notice them with a little more detail than usual. The course pursued will be to trace backwards the principal standing points assumed by the legislature from time to time, in gradually widening the powers of parties in this respect.

In 1860 the provision was more sweeping and conclusive, running thus:

"A party to an action, or special proceeding, including proceedings in surrogates' courts, and proceedings for the summary recovery of the possession of land, may be examined as a witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination as any other witness, except that a party shall not be exam. ined against parties who are representatives of a deceased person, in respect to any transactions had personally between the deceased person and the witness; and except, also. that neither husband nor wife shall be required to disclose any communication made by one to the other."

In 1859 the section stood:

" 399. (352.) 1. A party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness, but such examination shall not be had, nor shall any other person, for whose immediate benefit the same is prosecuted or defended, be so examined, unless the adverse party or person in interest is living, nor when the opposite party shall be the assignee, administrator, executor or legal representative of a deceased person.

2. And when, in any action or proceeding, the opposite party shall reside out of the jurisdiction of the court, such party may be examined by commission issued and executed as now provided by law.

"3. And whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received.

4. When an assignor of a thing in action or contract is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be sc received, as to any matter that will discharge him from any liability that the testimony of the assignor tends to render him liable for.

"5. But such assignor shall not be admitted to be examined in behalf of any person deriving title through or from him against an assignee or an executor or administrator, unless the other party to such contract or thing in action, whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination, nor unless at least ten days' notice of such intended examination of the assignor shall be given in writing to the adverse party."

The next standing point in the backward history of the section is 1857. By chapter 353, of the Laws of that year, volume I., p. 744, it was generally remodelled from its previous purport. The numerous heads of 1859 were omitted, but the purport was much the same. The portion No. 1, stood in the same words, but after it were added the following: "Nor unless ten days' notice of such intended examination of the party or person interested, specifying the points upon which such party or person is intended to be examined, shall be given in writing to the adverse party, except that, in special proceedings of a sun

mary nature, such reasonable notice of such intended examination shall be given as shall be prescribed by the court or judge."

Head No. 2, commenced thus: "And when notice of such intended examination shall be given in an action or proceeding in which the opposite party shall reside," &c., the rest of the head being the same.

Heads No. 3 and 4 were in the same words. So also, was head No. 5, except that the words, "specifying the points upon which he is intended to be examined," stood at the close between "intended examination of the assignor," and "shall be given in writing to the adverse party."

In 1858, the section of 1857 was amended, by inserting after the words "ten days' notice," wherever they occur, the following words: "if the action be in a court of record, and, in all other cases, four days' notice."

As will be seen, the amendment of 1859, does away with the necessity of notice in all cases except on the examination of an assignor, and that of 1860 abolished it altogether. From 1851 to 1857 the section stood thus. It commenced

"The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended."

It then proceeded with heads No. 1, 4, and 5 of the section of 1859, exactly as that part of the clause stood in 1857, omitting the previous portions of the section altogether.

It will be seen, therefore, that the radical change of admitting the testimony of parties, on their own behalf, took place in 1857. Prior to that the old rules prevailed, and they were excluded.

In 1849 and 1848 the section stood simply thus:

"The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action assigned for the purpose of making him a witness."

The effects of these different amendments, and the different stages in progress which they have worked out from time to time, will be considered in the appropriate section of the present chapter.

§ 204. Examination of Parties.

(a.) GENERAL REMARKS.

The provisions of the Code, in this respect, are an amplification of an original measure upon the subject (chapter 462 of the Laws of 1847), the most important provisions of which are incorporated in the present

enactments.

The views of the commissioners, in submitting those provisions to the legislature for their approval, are thus stated by them, in pp. 244 and 245 of their report: "One of the great benefits to be expected from the examination of parties is the relief it will afford to the rest of the community, in exempting them, in a considerable degree, from attendance as witnesses, to prove facts which the parties respectively know, and ought never to dispute, and would not dispute, if they were put on their oaths. To effect this object, it should seem necessary to permit the examination beforehand, that the admission of the party may save the necessity of a witness."

The recent amendments in section 399 have now carried out to its full extent the principle of which the germ is contained in the above remarks.

(b.) SUBSTITUTE FOR BILL OF DISCOVERY.

This intention is declared, by unavoidable implication, in section 389, as above cited; and the present provisions, in connection with those considered in the preceding chapter, and in connection with the power to compel the production of documents, by means of a subpoena duces tecum, afford, by means of their separate or their conjoint operation, as the case may require, an available substitute for the former chancery practice.

In Merritt vs. Thompson, 3 E. D. Smith, 283, it is expressly laid down that it is only the form, not the nature of the relief, formerly obtainable by bill of discovery, that is altered, and that the remedy can be as efficiently obtained, by this means, under the present, as under the former practice. See likewise Leeds vs. Brown, 5 Abb., 418.

And a complaint may, it seems, be sustainable, for the express purpose of obtaining such an examination. Van Rensselaer vs. Layman, 10 How., 505.

The general principle above stated, that the remedies now provided by the Code afford, in their conjoint operation, a complete substitution for those under the former practice, is expressly laid down in the following cases, cited in the preceding chapter: Brevoort vs. Warner, S How., 321; Stalker vs. Gaunt, 12 L. O., 124; Same case, 12 L. O., 132; Terry vs. Rubel, 12 L. O., 138; Higgins vs. Bishop, 12 L. O., 127. See likewise, as to the applicability of a subpoena duces tecum, under such circumstances, Bonesteel vs. Lynde, S How., 226; affirmed, S How., 352; Mitchell's case, 12 Abb., 249.

And the practice thus introduced has been held to amount to a practical abolition of the former power, in this state, of tendering the books of a party as evidence, in his own favor. He must now go upon the stand and tender his evidence as a witness, referring only to the books when necessary to refresh his recollection. Conklin vs. Stamler, 2 Hilt., 422; 17 How., 399; 8 Abb., 395. See, however, Tomlinson vs. Borst, 30 Barb., 42; Hauptman vs. Catlin, 1 E. D. Smith, 729.

The above practice has no effect upon the examination of a party in an accounting taken by the direction of the court. The party, in such a case, does not stand in the position of a mere witness, and his examination is regulated by the former practice. Wiggins vs. Gans, 4 Sandf., 646.

The prohibition in section 389 has no effect whatever on the class of suits in the nature of the former creditor's bill. It only refers to the

See Dunham

ordinary discovery sought by bill, and made by answer.

vs. Nicholson, 2 Sandf., 636; Quick vs. Keeler, 2 Sandf., 231.

(c.) GENERAL CONSIDERATIONS.

These provisions are wholly confined to the courts whose practice is regulated by the Code. They do not extend to proceedings in the Courts of Sessions. The People vs. Duell, 16 How., 43; 6 Abb., 285.

As to the right of a defendant to require a statement of the residences and occupations of plaintiff's, in order, among other things, to enable him to take proceedings of this nature, see Vincent vs. Vanderbilt, 10 How., 324.

These provisions of the Code have no application whatever to the case of testimony required for the purposes of a motion, nor can such testimony be compelled, either on examination within this state or on commission. Huelin vs. Ridner, 6 Abb., 19; Meyer vs. Lent, 7 Abb., 225 (Court of Appeals); reversing same case, 16 Barb., 538; Stake vs. Andre, 18 How., 159; 9 Abb., 420; Palmer vs. Adams, 22 How., 375.

Nor can it be compelled on a special statutory proceeding; as, for instance, on an application to perpetuate testimony. Keeler vs. Dusenbury, 1 Duer, 660; 11 L. O., 287.

In Brockway vs. Stanton, 2 Sandf., 640; 1 C. R., 128, it is laid down (as is indeed clear from section 390), that a party residing out of the state can be compelled to testify on a commission, the same as any other witness. See also Suydam vs. Suydam, 11 How., 518.

The examination of an adverse party, under these proceedings, is a matter of right, and cannot be denied, and an order refusing or limiting the exercise of that right is appealable. Green vs. Wood, 15 How., 338; 6 Abb., 277; 6 Duer, 702. See also Leeds vs. Brown, 5 Abb., 418; Partin vs. Elliott, 2 Sandf., 667; 2 C. R., 66; Anderson vs. Johnson, 1 Sandf., 713; 2 C. R., 95.

In Draper vs. Henningsen, 1 Bosw., 611, it is held that the court have no power to compel the adverse party to attend before a referee, and submit to be examined under these provisions.

(d.) WHEN EXAMINATION MAY BE HAD.

As a general rule, the examination of the adverse party will only be appropriate after issue joined.

But, when the examination is rather for the purposes of discovery than for the taking of testimony, strictly considered; or when the adverse party is examined, under the same circumstances in which a witness would be examinable, de bene esse, at an earlier stage of the cause (as, for instance, in the event of sickness, impending absence from the VOL. II.-18