Woodward, J.:
The plaintiff brings this action to recover commissions alleged to have been fraudulently withheld from him by the defendants, who under various contracts running back to 1901, were under obligations to keep track of and to account to him for sales made within the territory assigned to him upon which he was entitled to commissions whether the sales were made by the plaintiff directly or not. He has been granted an order for the examin|tion of the defendants, together with their books, papers, etc., in connection with such examination, and the defendants appeal from such order.
Page 460
Section 870 of the Code of Civil Procedure provides that the “ deposition of a party to an action pending in a court of record * * * may be taken at his own instance or at the instance of an adverse party, or by a co-plaintiff or co-defendant at any time before or during the trial as prescribed in this article.” The word “ prescribed ” has a well-defíned legal meaning; it means to “ lay down authoritatively as a guide, direction, or rule; to impose as a peremptory order ; to dictate; to point; to direct; to give as a guide, direction, or rule of action ; to give law.” (22 Am. & Eng. Ency. of Law [2d ed.], 1179, and authorities cited in notes.) Words having a precise and well-settled meaning in the jurisprudence of a country are to be understood in the same sense when used in statutes unless a different meaning is unmistakably intended (Perkins v. Smith, 116 N. Y. 441), and when a statute giving a privilege unknown to the common law or enlarging a privilege, authorizes something to he done in the manner therein prescribed, it, by necessary implication-forbids that it shall be done in any other way, even though that other way should be just as good or better. Section 872 provides that the “ person desiring to take a deposition as prescribed in this article may present to a judge of the court in which the action is pending * * * an affidavit setting forth as follows : ” (here are set forth seven subdivisions telling what this affidavit shall contain). Section 873 prescribes that the “ judge to whom such an affidavit is presented must grant an order for the examination if an action is pending,” etc. It is only upon the presentation of such an affidavit — the affidavit prescribed by the previous section — that the judge must grant the order, and he has no authority to grant it upon any other conditions. In the case now before us it is not contended that the affidavit presented to the judge contained the matters prescribed by section 872, but it is urged that as the notice of motion pointed out that it was to he made “ upon the annexed affidavit of Abraham B. Loewy, the plaintiff herein, and upon all the pleadings and proceedings had herein,” and as the necessary facts may he gathered from such pleadings, the moving papers are sufficient, and that the defendants are technical in their objection^ . But a notice of motion is no part of the affidavit; the affidavit itself does not refer to the pleadings in any way, or make them a part of the same, and, in any event, the statute does not Page 461
prescribe this as the way to give power and authority to the judge to grant the order. It requires an affidavit setting out the facts called for by section 872, and until such an affidavit has been made and presented to the judge there is no basis whatever for the granting of an order for the examination of an adverse party. The right of a party presenting such an affidavit, in harmony with the provisions of rule 82 of the General Rules of Practice, is absolute (Shonts v. Thomas, 116 App. Div. 854, 855, and authorities there cited); but the modern attitude of the court upon these orders does not justify granting or sustaining them where the moving party has not complied with the conditions prescribed. The statute grants a favor, and if the party moving desires the favor he must comply with the conditions prescribed ; that is the clear requirement of sections 870, 872 and 873 of the Code of Civil Procedure, and because the plaintiff has failed to comply with the conditions the order appealed from must be reversed, with costs.
Jenks, Hooker and Hiller, JJ., concurred; Gaynor, J., concurred in separate opinion.