Supreme Court, February, 1918.

[Vol. 102.

Nicholas J. Weldgen, for motion.

O'Brien & Powell, opposed.

RODENBECK, J. The technicalities which formerly surrounded the examination of a party before trial have been swept aside and such an examination may now be had upon a substantial compliance with the statute (Code Civ. Pro. §§ 870, 872) and rules (General Rules of Practice, r. 82). Goldmark v. United States Electro-Galvanizing Co., 111 App. Div. 526; Conover v. Palmer, 123 id. 814.

These decisions are in accord with the views of the members of the bar who have examined and reported on the subject. Report of Board of Statutory Consolidation (1915), rr. 224, 225; Report of Committee of State Bar Association (1916), § 39; Report of Committee of New York County Lawyers' Association (1917), § 20.

The statute and the rule, however, require that facts and circumstances shall be given in the affidavits showing that the testimony is material and necessary and the requirement is substantial. Code Civ. Pro. § 872, subd. 4; General Rules of Practice, r. 82.

The granting of the order rests in the sound discretion of the court (Jenkins v. Putnam, 106 N. Y. 272), although the statute says that it must be granted (Code Civ. Pro. § 873), but the entire statute cannot be disregarded unless the court is prepared to say that the legislature had no power to restrict the authority of the court in this respect.

There are many provisions in the Code that are useless because they confer powers already possessed by the courts and which should be left to the courts for regulation or seek to control the courts in matters of detail over which the legislature has no legitimate authority.

Misc.]

Supreme Court, February, 1918.

The present statutory provisions relating to the examination of a party before trial have been supplemented by court rules and although the subject rests in the sound discretion of the court the requirement that the testimony shall be material and necessary cannot be disregarded without construing the Code provisions out of existence entirely.

The changed attitude that has come over the courts in the treatment of this subject shows that we are emancipating ourselves from that condition of practice when a lawsuit was considered as a game to be played according to certain fixed rules with the judges as umpires to see that the rules were observed and suitable penalties enforced for infractions thereof. The Code of Civil Procedure was built up in this atmosphere and it can be corrected only by razing it to the ground and putting up in its stead a new structure in accord with the ideals and spirit and demands of the present times.

We have long since ceased to try the record on appeal instead of the case and we are now beginning to place justice above the law as expressed in the technical rules of the Code. As Professor Wigmore says: "We shall, indeed, have to enlarge transcendentally our professional spirit and purpose to rise beyond the essentially common-law demand of Shylock, 'I crave the law!' and to live in the atmosphere of that broader appeal to the magistrate, Duke Vincentio, 'Give me justice, justice, justice!' No less than this will suffice. Particular remedies and specific amendments, necessary though they be, will not go deep enough." (5 Wigm. Ev. preface.)

The order should be amended so as to allow only an examination as to the relation of the parties.

Ordered accordingly.

Supreme Court, February, 1918.

[Vol. 102.

Matter of the Application of JOHN ZIERBEL for a Resubmission of the Four Excise Questions in the Town of Oakfield, N. Y.

(Supreme Court, Erie Special Term, February, 1918.)

Election Law - electors - towns-military service of United States constitutional law.

The right to vote not being dependent on legislative action, it cannot be said as matter of law that, because chapter 815 of the Laws of 1917 makes no provision for taking and counting votes on excise questions submitted at an election duly held, qualified electors of a town by reason of absence while in the military service of the United States are deprived of their right to vote on such questions.

Upon an application for a resubmission of such questions it is incumbent upon the petitioner to satisfy the court that the soldiers' vote, if cast or permitted, would have changed the result, and, in the absence of satisfactory evidence to that effect, the resubmission asked for will not be ordered.

PETITION for resubmission of four excise questions. William E. Webster, for petitioner.

Clarence McGregor, for State Excise Commissioner. Bayard J. Stedman, for certain citizens of the town of Oakfield.

WHEELER, J. By the motion papers it appears that at the general election held November 6, 1917, in the town of Oakfield, condidates for state, county and town offices were voted for, and at the same time there were submitted to the electors four excise questions as to the sales of intoxicating liquors, and, on the question

Misc.]

Supreme Court, February, 1918.

as to whether licenses should be granted to hotels, the proposition to license was defeated by a majority of twenty-two votes, as shown by the tally of the voting machine used at said election. The relator, a hotel proprietor, now asks that the questions be resubmitted to the voters of the town. One of the grounds upon which a resubmission is asked is that there were twenty-six qualified electors of the town who were deprived of their right to vote on the propositions submitted but who were deprived of that right by reason of their absence while in the military service of the United States. The affidavits show that, while ballots were prepared and sent these soldiers for candidates for office and upon constitutional amendments submitted, no ballots were submitted upon the excise questions before the electors of the town of Oakfield. It is claimed that this omission violated article II, section 1, of the Constitution of the state providing among other things: "Every male citizen of the age of twenty-one years shall be entitled to vote

for all officers that now are or hereafter may be elective by the people; and upon all questions which may be submitted to the vote of the people,

that

in time of war no elector in the actual military service of the State or of the United States, * shall be deprived of his vote by reason of his absence from such election district; and the Legislature shall have power to provide the manner in which and the time and place at which such absent electors may vote, and for the returns and canvass of their votes in the election districts in which they respectively reside."

It appears the state legislature attempted to carry out this provision of the Constitution by enacting chapter 815 of the Laws of 1917, whereby the votes of electors absent in their country's military service might be taken and counted, but this act made no pro

Supreme Court, February, 1918.

[Vol. 102.

vision for taking and counting such votes on liquor tax questions.

The provision in favor of those in the military and naval service appears to be positive and unequivocal, and not dependent on the action of the state legislature. No action by or failure to act on the part of the legislature in our opinion can impair the rights of such voters. The legislature may provide the manner in which and the time and place at which such absent electors may vote," and in so far as the legislature covers the subject that legislation beyond question governs, but the right to vote is not dependent on legislative action. I can see no reason why if an absent soldier or sailor chose to vote on the excise questions submitted at the election in question, and had his vote duly authenticated and returned with the official ballot furnished him under the act of 1917, such vote should not have been received and counted in returning the final result. If this be true, then it cannot be said as a matter of law that such soldiers and sailors were deprived of the right or privilege of voting on the questions proposed. I appreciate the practical difficulties incident to voting without the aid of official ballots prepared in advance; but this omission did not render such voting impossible, and the privilege and opportunity was still open and the fact the voter did not avail himself of that opportunity cannot, we think, operate to invalidate the election had. So far as the case here presented is concerned it is the same as though the absent soldiers had been at the polls on election day and omitted to vote on the excise questions before the voters. In any event if there were to be a resubmission, if the petitioner's claim is sound on constitutional grounds, the same illegality would affect the new election, and this alone would be fatal to an order for a resubmission of the questions to the voters.