Burr v. Sears — 18 Abb. N. Cas. 447

Majority

p. 447

BURR v. SEARS.

N. Y.. Supreme Courts First District, Chambers ;

March, 1887.

Headnote

1. Deposition of witness about to leave the State.] An order for the examination of a material witness before trial of a pending action, upon the ground that he is about to depart from the State, may be . sustained, although the affidavit of the plaintiff, upon which the order was based, so far as it relates to the intended departure, is - made on information and belief, if it appears from the affidavit that such belief arises from investigations made by the deponent, and from statements made to him by the defendant.

Motion to vacate an order for the examination of a wit ness before trial.

The action was brought by an attorney for professional services under an agreement by which it was alleged he was to have one half of the recovery in an action of crim. con. prosecuted by him on behalf of defendant Sears against one Barnes, the witness.

After service of the summons upon defendant, and his appearance by attorney, but before service of the complaint, plaintiff procured ah order for the examination of Barnes before trial, upon an affidavit by plaintiff, in which he alleged a secret settlement and compromise of the crim. con. suit without the deponent’s knowledge, and for the purpose of depriving him of his compensation ; that he was ignorant of the amount paid by Barnes in settlement; that the witness resided in New York, and had an office therein for the regular transaction of business in person, “ and that as deponent is informed and verily believes, he is about to depart from the State; that as deponent is informed and believes, as part of' the secret settlement so made as between said defendant, — Sears and — Barnes, it was expressly understood and agreed that the said defendant — Sears would

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permit and allow his said wife--- to procure a divorce from him, and would put in no appearance, and would not oppose said action for divorce, and from investigations made by deponent, and from statements made to deponent by said Sears, deponent believes and avers that upon a decree for divorce being had in such action, the said Barnes and-(the defendant’s wife) intend to leave the State, and to reside abroad in Europe, thereby and by. reason of all the premises, deponent is in great danger of losing his testimony, unless the same is taken and perpetuated pursuant to statutethat deponent had been informed by defendant ■Sears of the commencement of an action by his wife against him for divorce ; that the testimony of Barnes was material and necessary to his case; that he desired by it to show the terms and conditions of the settlement between the parties, and that he intended to use the testimony upon the trial.

W. B. Hornblower (Carter, Hornblower & Byrne, attorneys), for the witness, and the motion;

contended that it was in effect an .order for the examination of a witness to enable the plaintiff to frame his complaint, and that the object was to find out whether in fact any payment had been made in settlement. Matter of Bryan, 3 Abb. N. C. 289 , per Sedgwick, J. (p. 293): “ I am therefore of opinion that a witness cannot be examined for the purpose of enabling a plaintiff to frame a complaint.” As said in Lathrop v. Bunn, 5 Civ. Pro. R. (Browne) 101, “ an examination will, not be allowed for the purpose of informing a plaintiff whether he has a cause of action.”

The order should also be "acated, because the material allegations of the affidavit are all on information and belief. See Walker v. Granite Bank, 19 Abb. Pr. 111 .

George A. McDermott, for the plaintiff, opposed.

Under subd. 5 of section 872 of the Code of Civil Procedure, the plaintiff is entitled, if an

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action is pending, to examine a witness who is about to depart from the State ; and under the same subdivision, if other special circumstances exist which render it proper that the witness should be examined, such examination may also be had.

In this case the criticism is made that the affidavit upon which the order was granted, so far as it relates to the intended departure of the witness, is made on information and belief; but it will be found upon examining the affidavit that the deponent states that such belief arises from investigations made by him, and from statements made to him by the defendant Sears. I think a prima, facie case under the circumstances disclosed was made out for the granting of the order, and shall therefore refuse to vacate it, with leave, however, to move on affidavits.

The ease of the Matter of Bryan (3 Alb. N. C. 289), I do nob regard as in point, for the reason that the application there was not made under the 5 th subdivision of section 872 of the Code.

Cases cited

Walker v. Granite Bank 19 Abb. Pr. 111 N.Y. Sup. Ct. p. 448