George M. Fiske and William Homes, Respondents, v. Frank E. Smith and Flora Sawyer, Appellants

George M. Fiske and William Homes, Respondents, v. Frank E. Smith and Flora Sawyer, Appellants. Order for defendants’ examination before trial — remeioable by the Appellate Division — the plaintiff’s apprehension that the defendants will commit perjury upon the trial is not a sufficient reason for granting it '. The Appellate Division has authority to review the determination of a judge who grants- an order'authorizing the examination of a party before trial. The affidavit, .upon which an order for the examination of the defendants in an action before trial was granted, stated that the affiant, who described himself as the plaintiffs’ agent for the purpose of making the affidavit, was “ convinced,” from the nature of certain testimony given by the defendants in a chancery suit in New Jersey, “that they would, if' placed upon the stand at the trial of this cause, give false evidence, which deponent could not then rebut, but if examined before trial thejr will not dare to testify falsely to any facts of - which the plaintiffs herein could prove the falsity and on which examination the plaintiffs could procure the indictment ” of the defendants. Held, that the reason assigned was insufficient to warrant the order; That it would be a reflection on the character of the parties to an action, which the court had no right to make, to force them to-submit to an examination upon • the assumption or assertion that such a course was necessary in order to guard against subsequent false swearing on their part, especially when there was nothing to sustain the assumption or assertion except" the bald statement of an agent of the adverse litigant that he is “ convinced ” of the danger of perjury. Appeal by the defendants, Frank E. Smith and another, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 2d day of July, 1896, denying their motion to vacate an order for the examination of the defendants before trial. J. Baldwin Hands and Thomas O'Callaghan, Jr., for the appellants. Robert D. Benedict, for the respondents. [MAJORITY — Willabd Babtlett, J.:] Willabd Babtlett, J.: The order for the examination of the defendants before trial cannot be sustained. The facts necessary to be shown upon such an application have been so frequently and so fully considered by the courts in the numerous reported cases upon the subject that they do not need to be restated here. In our opinion, it does not appear from the moving papers that the desired examination is either material or necessary. The affidavit upon which the order was granted is made by one William B. Gilmore,, who describes himself as the agent of the plaintiffs for the purpose of making it, and who swears, among other things, that, from the nature of certain testimony given by the defendants in a chancery suit in Hew Jersey, “ he is convinced that they would,, if placed on the stand at the trial of this cause, give false evidence which deponent could not then rebut, but if examined before trial they will not dare to testify falsely to any facts of which the plaintiffs herein could prove the falsity, and on which examination the plaintiffs could procure the indictment of said Smith and Flora Sawyer.” In other words, the plaintiffs want to examine the defendants before trial in order to prevent them from committing perjury upon the trial. This reason is not recognized as sufficient either by the Code or by the courts. It would be a reflection on the character of the parties to an action, which the court has no right to make, to force them to submit to an examination upon the assumption or assertion that such a course is necessary in order to guard against subsequent false swearing on their part, especially when there is nothing to sustain the assumption or assertion, except the bald statement of an agent of the adverse litigants that he is “ convinced ” of the danger of perjury. Nowhere else in the affidavit do we find any special conditions set out which indicate that the examination of these defendants should take place before, rather than upon, the trial. (See Abbott-Downing Co. v. Faber, 87 Hun, 300.) The proposition that the determination of the judge who grants the order will not be reviewed on appeal is not correct so far as it relates to the Appellate Division. This court possesses all the powers which belonged to the General Term at the time the present Constitution took efiect. (Const, art. VI, § 2.) The authority of the General Term, to review orders of this character was upheld in the case- of Jenkins v. Putnam (106 N. Y. 272). The order appealed from must be reversed and the motion to vacate the order of examination granted, with ten dollars costs and disbursements. All concurred. Order reversed and motion to vacate the order for the examination of the defendants granted, with ten dollars costs and disbursements.