The judges of the Court of Common Pleas are county judges. (Matter of Morgan, 56 N. Y., 629.) County judges are clothed with the powers which a judge of the Court of Common Pleas, being of the degree of counselor of the Supreme Court and acting as a Supreme Court commissioner, could exercise. (Judiciary act, Laws of 1847, p. 638, § 27.) Such an officer can perform the duties of a Supreme Court justice at chambers.
By the Revised Statutes such an officer can perpetuate testimony. ( 2 R. S. [Edm. ed.], 414, § 33.) In all cases where an application *257is made to an officer authorized to take the testimony, he may make the order returnable before any other officer authorized to take the examination, in the county where the witness resides. The county judge of Kings county is such an officer.
I can discover nothing upon which a claim can be based, that the provision of the Revised Statutes as to perpetuation of testimony is repealed. It is not in terms repealed. Section 389 of the Code has no reference to it. “No action to obtain discovery under oath in aid of the' prosecution or defense of another action shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed in this chapter.”
Discovery had a definite meaning under the Revised Statutes. Chancery could compel it, and the Supreme Court also could in certain cases. It never was applied to the perpetuation of testimony, and I think this section was intended to have no effect further than to abolish all actions and proceedings for a discovery which existed at the passage of the Code.
I think the order should be reversed on both grounds, with costs.
Present — Barnard, P. J., Tappen and Taloott, JJ.Order reversed, with ten dollars costs and disbursements.