The practice of examining parties at and before trial, inaugurated by sections 390 and 391 of the Old Code, was a great innovation upon previous methods, and has given rise to much discussion.
Before that change the redress to be obtained by law depended not so much on the real facts of the case as upon the caution with which the party had surrounded himself with witnesses, by whose testimony the facts could be established. However meritorious a cause -of action might be, and how well known the facts might be to the parties interested, the plaintiff would then fail unless-every material fact could be proved by witnesses who were without interest in the cause. Nor were the parties to the cause the only sufferers. The witnesses were compelled to sacrifice their time to prove facts that could not be disputed, and were in no real doubt, and were heavily taxed in matters where they had no concern. The liberty to examine an opposing party subject to the same rules of examination as any other witness (Old Code, § 90) has been a great relief to witnesses, and to the court, and a great benefit to honest litigants. But the relief to counsel preparing a cause for trial would be comparatively slight if they were compelled to rest in ignorance of the testimony of the ojaposing party until the trial. And the experienced authors of the Code, in section 391, provided that this examination of the adverse party might, at the option of the party claiming it, be had at any time before the trial. Since this provision of the law has been in force, prudent counsel have rarely been surprised at the trial, by unexpected evidence, trials have been shortened, the public time has been economized, and the burden upon witnesses has been greatly lessened. Trials have.been determined more than ever before upon the real merits. Parties who might be tempted to testify falsely with the stress of the trial upon them, and when they may hope that time and opportunity will not suffice to expose á false statement, when examined before trial are apt to testify truthfully. If they fail to do so the mischief is not often without remedy.
The right to examine the opposing party before trial, shown by experience to )0 beneficial, is preserved by the New Code, section 873, and the courts would be guilty of a grave error, should they allow it to be frittered away or unduly limited. Under the careful *272provisions of sections 875 and 876, there is small danger of abuse, and the Code does not give the. court any power to refuse to grant the order for examination where the action is pending, nor does it give the court any greater or different power to limit the examination of a party examined before trial, than to limit the examination of other witnesses upon the trial. So that the questions put to the witness are relevant to the issues to be tried, they must be answered to the extent of the witness’s knowledge. By this rule a searching investigation can be made immediately after issue joined into the merits of the controversy upon both sides. The points really in dispute will be made apparent; whether a defense be meritorious or a sham, will in most cases be made clear.. Counsel can more intelligently advise the parties as to the prospects of the litigation, by which amicable settlements will be encouraged, and the courts can better exercise their discretion in granting or refusing provisional remedies. The production of relevant and proper testimony by compulsion from a party, or any other person;, at any stage of the action, cannot be made a subject of complaint, and the earlier the facts are established the better for the interests of justice. Nor can the right of examination be limited by any rule of courts. (Glenney v. Stedwell, 64 N. Y., 120.)
The right to appoint a referee to take the examination is expressly given by statute, and in that respect the order appealed from is affirmed. The provisions of the order as to the attendance of parties, are reasonable, and are within the power of the court. In that respect the order must be affirmed. The limitation of the subjects to be inquired of, upon the examination, is not within the power of the court, and in that respect the order must be reversed, but without costs.
The examination will' proceed before the referee upon all the issues in the cause.
Barnard, P. J., concurred ; Gilbert, J., not sitting.Parts of order appealed from modified in accordance with opinion, without costs to either party.