Cook v. Bidwell
New York Supreme Court
Appeal from an order denying a motion to set aside an order for the examination of defendant before trial. The action was by John F. Cook against John A. Bidwell. The facts are sufficiently stated in the opinion. I. The order of the 4th of November, 1862, requiring the defendant to appear, &c., should have been set aside. No order was necessary at that stage of the proceedings, even if the plaintiff was entitled to examine the defendant before the trial.
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Appeal from an order denying a motion to set aside an order for the examination of defendant before trial. The action was by John F. Cook against John A. Bidwell. The facts are sufficiently stated in the opinion. I. The order of the 4th of November, 1862, requiring the defendant to appear, &c., should have been set aside. No order was necessary at that stage of the proceedings, even if the plaintiff was entitled to examine the defendant before the trial. The proper proceeding was to serve on the defendant a summons. (Voorhies’ Code, § 392, and cases; Gaughe a. Laroche, 14 How. Pr., 453; S.…
1Opinion of the CourtSutherland, J.
Section 390 of the Code provides, that a party to an action may be examined as a witness, at the instance of the adverse party, either at the trial, or conditionally, or upon commission, “ in the same manner, and subject to the same rules of examination, as any other witness.”
The caption or heading of the following section, 391, is, “ Such examination also allowed before trial—Proceedings therefor.”
The body of section 391 is: “ The examination, instead of being had at the .trial, as provided in the last section, may be had, at any time before the trial, at the option of the party claiming it,…
2Cited by2 opinions
- In re GroutAppellate Division of the Supreme Court of the State of New York · 1905
- In re GroutAppellate Division of the Supreme Court of the State of New York · 1905