Bell v. Richmond
New York Supreme Court
Appeal from an order denying a motion to vacate a summons to the plaintiff to submit to an examination before trial. The defendant in this action, on March 3,1868, applied to Mr. Justice Ingraham for a summons directed to the plaintiff, Jared W. Bell, requiring him to appear before him on the 16th of March, then instant, “to be examined as a party before trial on behalf of the defendant.”
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Appeal from an order denying a motion to vacate a summons to the plaintiff to submit to an examination before trial. The defendant in this action, on March 3,1868, applied to Mr. Justice Ingraham for a summons directed to the plaintiff, Jared W. Bell, requiring him to appear before him on the 16th of March, then instant, “to be examined as a party before trial on behalf of the defendant.” Such a summons was issued, and duly served upon the said plaintiff, who appeared, and moved to vacate the summons on the ground that the same was “irregularly issued.” Such motion was made upon his…
1Opinion of the Court
By the Court.*—Cardozo, J.
The question presented for our consideration-is whether a party can be examined as a witness under section 391 of the Code, before issue joined. I think the issue should be joined before the examination is had, unless a case is made, which is not pretended in this instance, justifying an order for the taking of the testimony de bene esse. The only reported decision in which a different view has been taken is McVickar v. Ketchum (1 Abb. Pr. N. S., 452), in which'the general term of the superior court (Justices Mouell and McCuhh) held' that the examination might be had…
2Cited by8 opinions
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- Hadley v. FowlerNew York Court of Common Pleas · 1872
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