Mott v. Consumers' Ice Co.

trademark, that no bona fide sales have been made by plaintiff (Union Paper Collar Co. v. Met. Collar Co., 3 Daly, 171), such fact being necessary to establish defendant's case.

It is said that the right of a defendant to a discovery is limited to documents which form a part of his case (Wright v. Morry, 11 Exch. 209).

So the plaintiff is not to have a discovery as to the manner in which defendant's case is to be established (Hunt v. Hewitt, 7 Exch. 236), and the rule is equally fair as to both parties; in fact, it has been held that neither party is allowed a discovery to enable him to rebut an anticipated case of the other (2 Wait's Practice, 531d, and cases cited).*

The discovery here sought is unquestionably with a view to rebut the plaintiff's anticipated case, and to oppose his books to what is expected to be his oral testimony. But such a claim of right to discovery and inspection, if allowed, would extend this peculiar remedy to almost every case, and subject all parties seeking redress for injuries to the person to the same sort of visitation and inquisition they would be compelled to undergo if charged with defrauding the

revenue.

The plaintiff, if he keeps books showing his gains and receipts from his practice, and refuses to produce them to support his own testimony on that point, subjects himself to certain presumptions against his claim which a jury would not be slow to apply, and in this respect the books of plaintiff are better witnesses for defendants out of court than in it.

But plaintiff resists an inspection of his books upon a ground that I deem fatal to the application, if no other considerations were presented, viz., that they

* See also Glenny v. Stedwell, 64 N. Y. and 1 Abb. N. C. 347, note.

Phoenix v. Dupuy.

contain, as part of his records, information derived from his patients, which is of a privileged character (2 R. S. 406, § 73, Edm. Ed. 422 [6th ed.], vol. 3, p. 611, § 119).

Application denied, with $10 costs.

PHOENIX v. DUPUY.

N. Y. Common Pleas; June Term, 1877.

EXAMINATION BEFORE TRIAL.-DISCRETIONARY ORDER.

Examination of an adverse party before trial under the Code, is a substitute for the former remedy by bill of discovery.*

So far as it is applicable, the practice which prevailed in equity is necessarily the guide as to the extent and nature of the discovery to which a party is entitled by such examination of his adversary. Such an examination should not be required in an action of libel, especially where it is sought to compel defendant to disclose whether he published the libel; or enable plaintiff to prove malice or damage, and his affidavit does not state facts having a tendency to show actual malice, or special damage.

The party is not to be left to the protection afforded by a claim of his privilege as a witness.

An order requiring the defendant to submit to examination in such case should be vacated on appeal.

Appeal by defendant from two orders.

John W. Phoenix sued Charles Dupuy, to recover damages for alleged libel. Plaintiff obtained an order requiring defendant to appear and submit to examination before trial. The allegations of the affidavit on which he obtained this order were as follows:

"I am the attorney for the plaintiff herein. This

* See note at the end of this case, and compare previous cases in this volume.

Phoenix v. Dupuy.

action was brought on or about October 9, 1876, by service of a summons on the defendant, and thereafter the complaint was duly served alleging certain libels of said plaintiff by said defendant and claiming $17,000 damages therefor. Issue was joined by the service of defendant's answer to said complaint on or about December 9, 1876, and said cause is now upon the calendar of this court for trial. On behalf of the plaintiff, I desire to examine said defendant as a party before trial; and upon such examination I shall 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 is necessary to enable this plaintiff to successfully prosecute his suit, inasmuch as all the same said facts are not admitted in said answer.

"I am informed and believe said Charles Dupuy resides in Flushing, N. Y., is engaged in business in this city, and can be served here."

Defendant's counsel moved before another judge to vacate the order, but the motion was denied on the ground that the remedy was only by application to the judge who granted the order. The defendant was required to submit to examination. He then appealed from the order for examination, and also from the order refusing to vacate the former order.

George W. Van Siclen, for defendant, appellant. -I. While the order for such examination is in the discretion of the court, that discretion can only be exercised where the court has power to grant such an order. The court has power to grant an order for examination of party before trial, in a case in which equity would formerly have sustained a bill of discovery. The power given by the Code to examine an

Phoenix v. Dupuy.

adverse party before trial is a substitute for the bill of discovery in chancery (Glenney v. Stedwell, 1 Abb. N. C. 327; Carr v. Gt. Western Ins. Co., 3 Daly, 160). In the case at bar a bill of discovery would not have been granted in equity.

II. The facts that plaintiff desires to prove can easily be proved in another way, and plaintiff was therefore not entitled to the order (Gelston v. Hoyt, 1 Johns. Ch. 543; Brown v. Swann, 10 Pet. 501, cited in 1 Abb. N. C. 338). If he has sued without having known, before he brought his suit, all those facts, a court of equity will not aid him to find all this out, and prove it out of defendant's own mouth, thus rendering the latter liable to indictment. This method of examination is not to be used by a party "to get information as to whether he had any case (ROBINSON, J., in Schepmoes v. Bousson, 1 Abb. N. C. 481).

III. The examination could not have been granted in aid of indictment (see Montague v. Dudman, 2 Ves. Sr. 398, cited in 1 Abb. N. C. 339).

IV. The bill of discovery would not have been allowed, and consequently the court had no power to grant an order for examination, to compel a party to answer as to matters which it appears from the papers would tend to subject him to indictment, penalty or forfeiture, or anything in that nature, other than the loss of the claim in suit (Taylor v. Bruen, 2 Barb. Ch. 301; Conant v. Delafield, 3 Edw. Ch. 201; Sharp v. Sharp, 3 Johns. Ch. 407; Deas v. Harvie, 2 Barb. Ch. 448; Leggett v. Postley, 2 Paige, 599); e. g., it was not allowable in libel or slander, as against defendant (Marsh v. Davison, 9 Paige, 580; Bailey v. Dean, 5 Barb. 297). The action at bar is for damages for alleged libel. If defendant should answer affirmatively the plaintiff's questions upon the points set forth in the moving affidavit, it would subject defendant to indictment.

Phoenix v. Dupuy.

V. The defendant, as a witness, could not be compelled to answer any question, if the answer would tend to criminate him, or would form a link in a chain of evidence which would render him liable to indictment (People v. Mather, 4 Wend. 229; Exp. Tappan, 9 How. Pr. 394). A bill of discovery would not be sustained against him in such a case (Taylor v. Bruen, 2 Barb. Ch. 301; McIntyre v. Mancius, 16 Johns. 592.)

VI. The answer to every question, therefore, which the plaintiff can ask this defendant relevant to the issue (and he can ask no other), would tend to convict the defendant of libel, or form a link in the chain of evidence which might render him liable to punishment. But none of such questions may be asked the defendant; he need answer none of them. Take for example the first question which was asked this defendant, when the examination went on under the order appealed from (a stay of proceedings pending this appeal having been refused): "Are you the defendant in this action?"; if joined to other questions put to other witnesses on the trial, this might be a link in the chain; it is only "identification"; but identification is an important point in a criminal trial. I have in mind a notable case in which ex-Mayor Hall lately appeared for the defense, and raised that very point of identity of the accused. In Conner v. Bradley (Anthon's N. P. 99), an action for usury, the witness was sworn, and upon being asked the first question, stated to the court that he "had been interested and concerned in the contract from the beginning," and claimed his privilege. No questions were asked. The witness cannot be forced to answer, if it would tend to criminate him to a penalty (Cloyes v. Thayer, 3 Hill, 364 [usury]; Burns v. Kempshall, 24 Wend. 360 [usury]). COWEN, J., says: "Any one of them" (the questions), might, if answered, have furnished a link in the chain of proof that usurious interest had been paid" (Byass