Matilda Wallace, Respondent, v. Thomas Baring and Others, Defendants. John J. McCook, Appellant

Matilda Wallace, Respondent, v. Thomas Baring and Others, Defendants. John J. McCook, Appellant. Deposition of a third person to aid a moving party — a subpoena duces tecum is unauthorized — Code of Oivil Procedure, § 855. • A party to an action, who intends to make a motion, may obtain, by an order, the deposition of a person not a party to the action,' who is possessed of any informa- ' tian which will assist the moving party, but there is no authority for the issuing, under such an order, of a subpoena duces tecum, compelling the witness to produce the hooks and papers of a corporation. Such a witness is not required to obtain information from outside sources, nor can he be compelled, by an examination of the books and papers of a railroad company, to qualify himself as an expert accountant for the benefit or cont vemence of the moving party. Appeal by John J. McCoolc from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lJth day of February, 1896, denying his motion to vacate an order made in the action on the 4th day' of December, 1895, directing him to appear before a referee in said order appointed and to give his deposition to be used by the plaintiff upon a motion to be made by her for an attachment against the Atchison, Topeka and Santa Fe Railroad Company. The plaintiff, being about to apply for an attachment against the defendant, the Atchison, Topeka and Santa Fe Railroad Company, a non-resident corporation, obtained an order to take the deposition of a person, who refused to make an affidavit, to be used on the application for the' attachment. In addition to the order and the papers upon which it was granted, there were served-two subpoenas, requiring the witness to appear before the referee named in the order, one requiring him to appear personally, and the other a subpoena duces tecum addressed to him individually and-as receiver of the railroad company. Thereafter a motion was made to vacate the order and set aside the subpoenas; and it is from the order denying the motion to vacate that this appeal is taken. Allan McCulloh, for the appellant. Demid Gerber and A. J. Dittenhoefer, for the respondent. [MAJORITY — Pee Curiam:] Pee Curiam: We think that the order for the examination of the witness was proper. Section 885 of the Code of Civil Procedure gives the party who intends to make the motion the right to obtain the affidavit or deposition of a person hot a party who is possessed of any information which will assist the moving party. Such a deposition is simply an affidavit by a person not a party who will not voluntarily testify to facts' within his knowledge, which, if necessary for the use of a party to an action upon a motion, the court can compel him to give. Under such an'order, however, we can find no warrant for the issuing of a subpoena duces tecum, such as was issued by the referee, requiring the productioh of books and papers of the company. As said in Fisk v. Chicago, Rock Island & Pacific R. R. Co. (3 Abb. Pr. [N. S.] 433): “ The examination is not * *' * a discovery. If the witness does not know the fact’' sought to be proved, then his affidavit is not ‘ necessary.’ Tie cannot be required either to take any means to inform himself nor to produce any thing, which contains such information.” What the section provides is for an affidavit or deposition of facts which are within the knowledge of the person sought to be examined, and he is not required to obtain from outside sources information for a party to the action, nor is he «compelled, by an examination of books and papers of a railroad company to qualify himself as an expert accountant for the convenience of a party. The order, so far as it.directs the examination to be taken, should be affirmed; so far as it refuses to set aside subpoena it should be reversed; and so much of the motion as sought to have the subpoena duces tecum set aside should be granted without costs. Present—Ya$t Beunt, P. J., Williams, Patteesok, O’Beien and Irr&EAHAM, JJ. Order, s.o far as it directs the examination, affirmed; so far as it refuses to set aside subpoena, order reversed; and so much of the motion as sought to have the subpoena duces tecum set aside, granted, without costs.