Hebrew Free School Association, &c., agt. Mayor, &c., of New York. this instance, commence a new action (Lane agt. Salter, 51 N. Y., 1; Money agt. Tracey, 92 id., 581). We think the order appealed from should be affirmed. SUPREME COURT. THE HEBREW FREE SCHOOL ASSOCIATION OF THE CITY OF NEW YORK agt. THE MAYOR, &C., OF NEW YORK and others. Estoppel of judgment— effect of judgment which stands unreversed, when pleaded in a proceeding between same parties, and which covers all the claims made by the plaintiff. As to all matters, either of fact or law, which legally might have been and actually were litigated in an action or special proceeding between the same parties, in a court of competent jurisdiction, the judgment rendered therein is binding and conclusive in all litigations between the same parties. Where a former judgment between the same parties is given in evidence in a case on trial before a judge at special term, which judgment covers all the claims made by the plaintiff in such case, it is conclusive on the trial judge. Special Term, February, 1886. THIS action was brought to restrain defendants from collecting taxes imposed upon premises in the city of New York, occupied by plaintiff for a school, and to have said taxes adjudged illegal and void. This was a retrial of the action, a new trial having been ordered by the court of appeals, upon reversing a former judgment in favor of the plaintiff. A. D. Sanger, for plaintiff. D. J. Dean, for defendant. Hebrew Free School Association, &c., agt. Mayor, &c., of New York. VAN VORST, J. — When this case was in the court of appeals that court declined to pass upon the question as to whether the defendants were not estopped by the judgment of this court in the action between the same parties for the taxes of the years 1869 and 1870, for the reason that the judgment had not been pleaded or given in evidence in the case before it (Hebrew Free School Association agt. Mayor, &c., 99 N. Y., 488). The opinion of the general term affirming that judgment was adopted as the opinion of this court in the present case, and, as the court of appeals says in its judgment, "covers all the claims made by the plaintiff." That judgment has been pleaded and has been given in evidence in the case before me, and if it "covers all the claims made by the plaintiff," I do not see but that it is decisive, at least in so far as I am concerned. The court of appeals, in a late case (Leavitt agt. Wolcott, 95 N. Y., 212), in an action brought for the construction of a will, declined to pass upon the questions raised, for the reason that in an action of partition between the same parties the validity of the same will had been disposed of, the court of appeals holding that "whatever may be the rule as to such matters as might have been, but were not litigated in a prior action, it is well settled that as to all matters, either of fact or law, which legally might have been and actually were litigated in an action or special proceeding between the same parties, in a court of competent jurisdiction, the judgment rendered therein is binding and conclusive in all litigation between the same parties." Considering the questions now raised to have been distinctly passed upon in the case between the same parties (reported in 4 Hun, 446), it is for the general term to decide to what extent, if any, that judgment is affected by this subsequent case in the court of appeals. That judgment still stands unreversed, and its effect as an estoppel yet remains to be determined. I hold it to be conclusive here. The plaintiff must have judgment. Merchants' National Bank agt. Sheehan. COURT OF APPEALS. MERCHANTS' NATIONAL BANK OF NEW YORK agt. SHEEHAN and another. Code of Civil Procedure, section 870 — Examination of defendant by plaintiff before suit brought authorized by this section. Under section 870 of the Code of Civil Procedure, an order may be granted to the plaintiff for the purpose of examining a person against whom he proposes to bring an action, but the granting of such order is entirely in the discretion of the court. Decided January, 1886. M. J. Scanlan, for appellants. G. Zabriskie, for respondent. ANDREWS, J.-The question on this appeal depends upon the construction of section 870 of the Code, which is as follows: "The deposition of a party to an action pending in a court of record, or of a person who expects to be a party to an action about to be brought in such a court," &c., "may be taken at his own instance, or at the instance of an adverse party, or of a co-plaintiff or co-defendant, at any time before the trial, as prescribed in this section." The question presented is whether this section authorizes an order for the examination of a person against whom an action is about to be brought, upon the application of the person who is about to bring such action, but before it has been actually commenced. The section is obscure, and its interpretation is by no means clear. The deposition to be taken is of the person "who expects to be a party." A person who contemplates bringing an action expects to be a party thereto, and it seems to be clear that, under the section, he can procure his own testimony to Merchants' National Bank agt. Sheehan. or at the be perpetuated. The person against whom the action is to be brought may expect to be sued. A suit may have been threatened, or he may know that a cause of action has accrued against him, or that a liability is claimed, likely to result in litigation. Is the remedy given by this section available to either of the persons so situated, and may an order be granted before suit brought, upon the application of either, for the examination of his adversary? Considering this section alone, the most natural meaning would seem to be that a person who expects to become or to be made a party to an action, may, on his own application, have his deposition taken in anticipation of the actual commencement of the suit, and that the words " instance of an adverse party" only apply when the person seeking the examination of his adversary is a party to a pending action. The change of phraseology by the substitution of the word "party" in the second clause, for the word "person" in the first clause, gives some force to this construction. But section 879 seems to render it clear that a proceeding under section 870 may be instituted by an adverse party against the other, although no suit has been commenced, but is only contemplated. That section provides that certain specified sections for the punishment of contumacious witnesses shall apply "to the examination of a party or a person expected to be an adverse party." It would be absurd to provide for the punishment of a person who sought to perpetuate his own testimony. The section plainly was intended to provide for the case of a contumacious witness, expected to be made a party to an action, whose examination was sought by his adversary. On the whole, we are of opinion that the order issued in this case, on the application of the bank, for the examination of Sheehan, against whom the bank was about to commence an action, was authorized, and that he was in contempt for disobeying it. The bank might have commenced its action, and then have procured an order for the examination of the defendant. The granting of an order in such a case as this, before suit brought, upon the application of the proposed plaintiff, is People ex rel. Supervisors of Ulster County agt. City of Kingston. within the discretion of the court, but it can rarely happen that justice will be promoted by granting an order on the applica tion of a proposed plaintiff, before the commencement of an action; and the practice, unless carefully guarded, may lead to great abuse. The order should be affirmed. All concur. COURT OF APPEALS. PEOPLE ex rel. SUPERVISORS OF ULSTER COUNTY agt. COMMON COUNCIL OF THE CITY OF KINGSTON. Taxation - Costs on appeal from equalization of valuations — By whom paid— Board of supervisors power to audit such costs— Practice - Demand for hear ing — Mandamus — Authority of board of supervisors to obtain — Neglect to levy equivalent to refusal to pay. Where the board of supervisors of Ulster county audited a bill for costs and expenses of an appeal to the state assessors, by the supervisors of the city of Kingston, from the equalization of valuations against that city, although requested by the latter to wait until they could be heard on the matter; and the city of Kingston obtained a writ of certiorari to review the proceedings, which was dismissed, and on the defendants failing to levy the tax necessary to pay the bills, an order for a mandamus was granted at special term to compel them to do so, and affirmed at general term. On appeal from order at general term of affirniance: Held, that the order granting the mandamus was proper and should be affirmed. Where an appeal from equalization of valuations is sustained, the costs must be assessed to the wards, towns and cities in the county other than the appellant, but if it be not sustained, then they must be borne by the town, ward or city appealing. The legislature has the power to constitute the board of supervisors a board to audit the expenses against the city, and the latter did not come within the statute prohibiting a judge from sitting in a case in which he is a party or is interested. Where the city supervisors did not make a demand for a hearing until just before the time for the adjournment, they having knowledge of the |