The object of the examination of the defendants, Samuel L. Pettengill and Herbert L. Bridgman, was to enable the plaintiffs to frame their complaint.
From the application it is apparent that it was designed to *125obtain from thorn information connecting them with the publication of the alleged libelous matter. Under section 391 of the Code this cannot be allowed in an action of this character, for the reason that it assimilates to a bill of discovery which in such cases "was not allowed under the old system, and has been refused in many instances. Such is the rule both in England and in this country, the reason being that the answers may criminate or tend to criminate the person giving them. (Bailey v. Dean, 5 Barb., 297; Phœnix v. Dupuy, 2 Abb. [New Cases], 146; Paxton v. Douglas, 19 Vesey, 225; Tupling v. Ward, 6 H. & N., 749; March v. Davison, 9 Paige, 580.)
The right to an examination under section 391 is not, by virtue of its provisions, so enlarged as to include cases in which, by the law existing when it was passed, a party would be at liberty to refuse to answer if put upon the stand. This decision is designed to relate to the case considered and kindred cases, and not to affect in any way the right of a party to call the defendant as a witness upon the stand, leaving him while there to such objections as he may interpose against answering any question put to him; or to his examination under the Code after issue joined.
The order should be reversed with ten dollar’s costs and disbursements to the appellant, to abide the event.
Davis, P. J., and Ingalls, J., concurred.Order reversed with ten dollars costs and disbursements to appellant, to abide event.