Keenan v. O'Brien

Patterson, J.

It was conceded on the argument that Mr. Whitton must answer the questions. The examination having proceeded thus far in'the presence of the defendants’ attorneys, there can be no reason for excluding them now. Their disclaimer, under oath, of having interfered-with the due course of examination, is satisfactory. I do not think they are entitled to cross-examine Mr. Whitton. The whole proceeding is ex parte, and is made none the less so because the aid of the court has been invoked to require a person to make an affidavit who would not voluntarily do so. Brooks v. Schultz, 3 Abb. Pr. (N. S.) 124, is not a controlling authority. That case is also reported in the regular reports of the superior court,—5 Rob. (N. Y.) 656,; and the opinion of another judge who sat in the case there-given is in conflict with that reported in 3. Abb. Pr. (N. S.) The defendants are not deprived of any right. They can procure from the person examined any affidavit that may be necessary to explain or supplement what he states, and, if he refuses, they cari compel him to make one without any interference on the part of the plaintiff.