Phoenix v. Dupy
New York Court of Common Pleas
The complaint is for damages for alleged libels. Upon an affidavit the usual summons and order for examination of defendant, as a party before trial, were granted by judge Robinson, on the 28th day of February, 1877. The grounds for the application are stated in the affidavit as follows: “ To endeavor to disclose that the letters set forth in said complaint were published by said defendant; so in malice; were received by the parties to whom they were addressed, and that in…
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The complaint is for damages for alleged libels. Upon an affidavit the usual summons and order for examination of defendant, as a party before trial, were granted by judge Robinson, on the 28th day of February, 1877. The grounds for the application are stated in the affidavit as follows: “ To endeavor to disclose that the letters set forth in said complaint were published by said defendant; so in malice; were received by the parties to whom they were addressed, and that in consequence said plaintiff has been injured as alleged in said complaint; and furthermore, the same,” i. e., the…
1Opinion of the Court
Daly, Ch. J.
The examination of an adverse party before trial provided for by section 391 of the Code is a substitute for the former remedy by bill of discovery, which was abolished by this chapter of the Code, and may be had where a bill for a discovery would previously have been sustained (Car agt. W. W. Ins. Co., 3 Daly, 160; King agt. Leighton, 58 N. Y., 383; Glenny agt. Stedwell [Ct. of App.] 51 How., 329 ; 1 Abb. N. C., 273, and note 332; Wiggin agt. Gans, 4 Sandf, 647).
This remedy was formerly the only way in which proof of a fact exclusively within the knowledge of one of the parties…
2Cases cited8 opinions
- March v. DavisonNew York Court of Chancery · 1842
- Bailey v. DeanNew York Supreme Court · 1848
- Judson v. Rossie Galena Co.New York Court of Chancery · 1842
- King v. . LeightonNew York Court of Appeals · 1874
- M'Intyre v. ManciusNew York Supreme Court · 1819
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