Mudge v. Gilbert
New York Supreme Court
The plaintiff obtained a summons for the examination of the defendant before the county judge of Onondaga county, pursuant to sections 390 and 391 of the Code, and while pursuing such examination, certain questions were asked, on behalf of the plaintiff relating to the defense interposed by the defendant, and not pertinent to the affirmative claim made in the plaintiff’s complaint against the defendant.
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The plaintiff obtained a summons for the examination of the defendant before the county judge of Onondaga county, pursuant to sections 390 and 391 of the Code, and while pursuing such examination, certain questions were asked, on behalf of the plaintiff relating to the defense interposed by the defendant, and not pertinent to the affirmative claim made in the plaintiff’s complaint against the defendant. The defendant objected, claiming that the plaintiff could only ask for such facts as were essential to enable him to make out his case as charged in the complaint, and that he had no right to…
1Opinion of the CourtHardin, J.
—Prior to the adoption of the Code in 1848, bills of discovery were allowed to obtain evidence in aid of *220actions at law (Lansing agt. Starr, 2 Johns. Ch., 150 ; Deas agt. Harvey, 2 Barb. Ch., 448; Lane agt. Stebbins, 9 Paige, 622).
This practice was abolished and prohibited by section 389 of the Code ;6 and by section 388 the method provided for searching documentary evidence was provided.
• Section 390 provides that, “ a party to an action may be examined as a witness * * * and subject to the same rules of examination as any other witness to testify either at ■the trial, or conditionally, or…
2Cases cited5 opinions
- Gt. W. Turnpike Co. v. . LoomisNew York Court of Appeals · 1865
- Bell v. RichmondNew York Supreme Court · 1868
- Lane v. StebbinsNew York Court of Chancery · 1842
- Lansing v. StarrNew York Court of Chancery · 1816
- Deas v. HarvieNew York Court of Chancery · 1847