Appellate Term, Second Department, December, 1917. [Vol. 102. visions for the taking within the state of the depositions of witnesses not parties before trial. The changes made by the Code of Civil Procedure were, however, mainly administrative and did not affect substantially the right to have the examination of a party before trial. The authorities are not in harmony on the question whether the jurisdiction of the Supreme Court to direct the examination of a party before trial is inherent or whether it is purely statutory. Unquestionably the Supreme Court, as the successor of the Court of Chancery and by virtue of the provision of the Constitution of 1846 giving it general jurisdiction in law and equity, succeeded to the power of the Court of Chancery or of the chancellor to entertain a bill of discovery in aid of a common-law action; and the authorities have generally recognized that the provisions of the Code of Procedure and the Code of Civil Procedure for an examination of the adverse party before trial constituted a substitute for the bill of discovery. Thus in Glenney v. Stedwell, 64 N. Y. 120, 122, Judge Folger, after referring to the equitable practice of bill of discovery, said: "The commissioners who reported the Code of Procedure, and the legislature which enacted it, found the Supreme Court in possession of this jurisdiction. It is not to be supposed that so great a change was intended to be made, as to abolish this power and to take away this right and means of relief to suitors, unless there is found clear indication of it in the report of the commissioners, or an unmistakable intention in the terms of the enactment. "We find that in reporting the provisions of the Code for the examination of parties to actions, which prohibit the bringing of a bill of discovery in one action in aid of another action, the commissioners meant them to be a means of accomplishing, substantially, the same Misc.] Appellate Term, Second Department, December, 1917. ends which were attained in a court of equity in the exercise of its jurisdiction to compel a discovery. (Comrs. 1st Report, p. 244.) Nor do the sections reported and adopted prohibit the essential relief before attained. They interdict the mode of relief, as well might be, after the distinctions were removed between a court of law and one of equity, and the commingling in one of the powers and jurisdictions of the two kinds of courts. They might well then provide. that, in the same action, with whatever subject-matter it dealt, discovery should be afforded and relief granted." The question involved in that case was whether an examination of a defendant could be had to enable the plaintiff to frame his complaint, and the learned judge, after examining particularly the several provisions of the act, proceeds as follows: "It is doubtful whether the testimony of one who is likely to be a party to an action not yet commenced, may be perpetuated under the Revised Statutes above cited, for they deal only with witnesses, and not with a party to the action, either real or prospective. We express no decided opinion as to this. We do hold that but for the three hundred and ninety-first section [of the Code of Procedure as amended in 1849], construed as we construe it, a party to an action cannot be examined after process served, and before complaint served. The omis sion to provide, by the Code, for the perpetuation of the testimony of a prospective party, before suit commenced, for the benefit of one who expects to be a party to a suit about to be commenced, if it exists, is a failure to fully carry out the avowed purpose of the codifiers, to make the parties to actions the prime and principal source of the testimony upon which they are to be determined. (See Report, as above cited.) And the omission to provide for the examination of a party, Appellate Term, Second Department, December, 1917. [Vol. 102. before complaint served, would be another failure to attain fully that purpose; and also, a failure in the avowed purpose to provide an ample substitute for the former bill of discovery. "Apart from the argument to be had from this avowed purpose, the language of the three hundred and ninety-first section,' at any time before trial,' is broad enough to authorize an examination, at once, after the service of process. There is reason to conclude that so the legislature meant it; for thus is harmonized the purpose of giving to a court of law the power to do that which a court of equity could have done by a separate action in aid of one at law, with the other purpose of abolishing the wearisome machinery of the Court of Chancery, and of simplifying and shortening the methods of procedure. The substance is retained, and the process is more ready." (See note to this case in 1 Abb. N. C. 332.) In King v. Leighton, 58 N. Y. 383, the Court of Appeals in discussing the provisions of the Code of Procedure relative to discovery of documents, which was one of the forms of relief which might have been obtained by the bill of discovery in equity, said, by Johnson, J.: "The provisions of the Revised Statutes in respect to the discovery of books and papers were introduced to remedy the defects of power in commonlaw courts over that subject. Originally confined to the Supreme Court, they were extended to certain other courts by chapter 38 of the Laws of 1841; but they neither conferred or controlled the power of the Court of Chancery. That court acted by virtue of its inherent jurisdiction over discovery and framed its own rules, fixed the limits within which it would proceed and from time to time adjusted its procedure to meet the requirements of justice.' Subsequent authorities have recognized the doctrine Misc.] Appellate Term, Second Department, December, 1917. of Glenney v. Stedwell, supra, that the provisions of the Code relative to examination of parties before trial constituted a substitute for the bill of discovery. Greer v. Allen, 15 Hun, 432, 434; Sweeney v. Sturgis, 24 id. 162, 165; Adams v. Cavanaugh, 37 id. 232, 234; Matter of Darling, 31 Misc. Rep. 543, 544; Phoenix v. Dupuy, 2 Abb. N. C. 146, 152, New York Common Pleas, per Daly, Ch. J., with whom J. F. Daly and Larremore, JJ., concurred; and Kinney v. Roberts & Co., 26 Hun, 166, 168-169. On the other hand we have a line of cases of varying degrees of appositeness and cogency which hold that the power of the courts, including the Supreme Court, to order an examination of a party before trial is purely statutory. These authorities seem to rest upon the dictum in Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278, where the Court of Appeals, in reviewing an order of the General Term of the Superior Court of the city of New York, said, per curiam: "The right of the plaintiff to have the examination of these two defendants is strictly statutory. Independent of the statute, there is no such right. The court has no inherent or common law power to order the examination." See also Wiechers v. New Home Sewing Machine Co., 38 App. Div. 1, 2; Matter of Schlotterer, 105 id. 115, 118; Matter of Gains, 15 Misc. Rep. 75, 77; Bowe v. Brunnbauer, 13 id. 631, 632; Boskowitz v. Sulzbacher, 121 App. Div. 878, 883; Balcom v. Adams, 15 Civ. Pro. 198, 200; Adams v. Cavanaugh, 37 Hun, 232, 235; Mitchell v. Schroeder, 94 Misc. Rep. 270, 280. The authorities last cited so far as they relate to the Supreme Court would seem to indicate that the inherent power of the Supreme Court, as the successor of the Court of Chancery, to grant discovery, conferred by the Constitution of 1846 and preserved by the Constitution of 1894, has not been given sufficient Appellate Term, Second Department, December, 1917. [Vol. 102. weight by some judges. Doubtless the power of the Superior Court of the city of New York, whose jurisdiction was under consideration in Heishon v. Knickerbocker Life Ins. Co., supra, was statutory in origin, and in this respect the decision of the Court of Appeals was doubtless correct; but the broad language above quoted from that case has been misapplied in holding that the jurisdiction of the Supreme Court in discovery proceedings under the Codes is derived from the statute. The Supreme Court has been far too ready in many instances to bow before legislative enactments which take away or limit its inherent or constitutional jurisdiction, and this I think is one instance in point. Prior to the enactment of chapter 610 of the Laws of 1916 permitting the examination of parties before trial in the Municipal Court the question was raised whether that court had power to permit such an examination after it was made a court of record by the enactment of the Municipal Court Code. In Mitchell v. Schroeder, supra, this question was elaborately discussed by Mr. Justice Lehman in the Appellate Term, first department, and the conclusion was reached that the Municipal Court had no such power because, although sections 870 et seq. of the Code of Civil Procedure were by their terms applicable to courts of record, yet, as those sections conferred a new statutory jurisdiction upon the Supreme Court and were not merely regulative of an inherent jurisdiction, it could not be deemed that the legislature in making the Municipal Court a court of record intended to confer upon it such jurisdiction. The doctrine of that case was approved by the Appellate Division in the second department in Scheidlinger v. Silber, 174 App. Div. 887. Nevertheless, for the reasons above stated, I cannot agree with the doctrine that the power of the |