Having concurred in the decision in Phœnix v. Dupuy (ante, p. 238), I have sought to apply the same ruling in this ease. But a marked distinction is found in the phraseology of the statute authorizing an examination of a party before trial.
The case first mentioned was under §§ 389-395 of the old Code, the proceeding under which is in the nature of the former remedy by bill of discovery. (Glenny v. Stedwell, 64 N. Y. 120.)
Section 391 of the.old Code provided that the examina*523tion of a party, instead of being had at the trial, might be had at any time before the trial at the option of the party. Under this statute, the examination has in some instances been held to be a statutory right and beyond judicial discretion.
But this application is under §§ 870-873 of the Code of Civil Procedure, which appear to be mandatory in terms, and to have been adopted to meet and remove a variance of opinion upon the construction of the former statute.
Whatever m'ay be the effect of rule 89 of the Supreme Court, it was not in operation when this application was made, and the defendants stand upon the law in force in September, 1877.
It is unnecessary to consider what limitations might be imposed by the court upon such an examination. The defendants’ right to the order for it seems to be authorized by law and a matter of right upon the papers presented.