August v. Fourth National Bank — 24 Abb. N. Cas. 39

Majority

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AUGUST v. FOURTH NATIONAL BANK.

N. Y. Supreme Court, First District, Special Term and Chambers ;

November, 1889.

Headnote

1. Depositions; examination de bene esse.] The fact that affidavits produced in support of a motion to vacate an order for the taking of the testimony of a sick witness raise a doubt in the mind of the court, as to the seriousness of the witness’ illness and its probable fatal termination at an early day, will not justify the granting of the order; nor will a mere suspicion of counsel that the witness may leave the jurisdiction furnish ground for such order.

2. The same.] Where plaintiffs desire to examine a witness, de bene esse, in several actions against different defendants there is no authority for the taldng of orders entitled in all the actions, as each defendant is entitled to a separate cross-examination and also to a separate examination in chief; but where separate orders so entitled, have been obtained and served, they may be regarded as-if entitled only in the action against the defendant on which the order is served.^[1]

3. The same; for new trial.] Where the witness has already testified upon the trial of action, but a new trial had been granted, his deposition to be used on the new trial, may be taken, if his testimony was-not as full as it might have been.^[2]

Motion to vacate orders for examination of witness-before trial.

These were several actions brought by the plaintiffs,. August, Bernheim and Bauer, against several National Banks in the City of New York to recover moneys deposited

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by plaintiffs with the said banks, and paid out by the latter on forged checks. One Frederick Fishel, the chief bookkeeper of plaintiffs, and the person who committed the alleged forgeries, was incarcerated in Ludlow Street Jail. It appears by affidavits that the facts and circumstances out of which plaintiffs’ cause of action arose, were in the sole knowledge and possession of Fishel, and that he was the only person conversant with the forged signatures, and also, that he was precariously ill, and in all probability would not survive to attend the trial of these actions. Thereupon orders were procured granting leave to the plaintiffs to examine the said Fishel before trial, for the purpose of perpetuating his testimony.

Martin ds Smith,; Bristow, Beet <& Opdylce; Billmgs da Cardoza; Allen, Talmage da Allen; Barlow da Wet-more ; Townsend, JDyett & Einstein, attorneys for the several defendants for the motion.

Horace E. JDeming, plaintiff’s attorney, opposed.

It is conceded by the counsel for the various defendants that Fishel is a material and necessary witness for the plaintiffs. The affidavits as to his physical condition, upon which the orders for his examination were granted, made out a prima facie case, under the statute, for such examination. The most that can be claimed in regard to the affidavit of Dr. Fowler is, that it raises a doubt as to how serious his sickness is, and as to whether it may terminate fatally at an early day. Such a doubt would not justify me in vacating these orders, for the plaintiffs should not be compelled to take the risk of losing his testimony. Hor can I vacate the orders, because it is suspected that, after his examination has been taken, he may be released from close confinement and may then leave the State, and not appear upon the trial, for the suspicions of counsel or their Clients are not legal proof. I am of the opinion, however, that

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there is no authority of law for taking his testimony in the manner proposed.- Each defendant is not only entitled to have a separate cross-examination, but also a separate examination in chief. It does not follow that the orders should be vacated, for as six orders, each entitled in all the actions, were obtained, the orders served upon the respective attorneys should be regarded as though entitled in one case only. With regard to the action against the Fourth National Bank, plaintiff’s attorney claims that the testimony given by Fishel upon the trial of that action was not as full as it might have been, and that there is as much necessity for examining him in that action as in the others. The motions to vacate the orders for Fishel’s examination must all be denied, but without costs.