Beardsworth v. Whitehead — 137 A.D. 306

Majority

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Lillie Beardsworth, Individually and as Administratrix, etc., of Alfred J. Whitehead, Deceased, Respondent, v. Johh L. Whitehead, Individually and as Surviving Partner of the Firm of Whitehead Brothers, and Others, Defendants, Impleaded with Ida Harnden, Appellant.

First Department,

March 24, 1910.

Headnote

Trial—refusal of witness to appear for cross-examination. — remedies.

The usual remedy for the failure or refusal of a witness to appear for cross-examination is to strike out ■ his testimony, although, it seems, there may be circumstances under which such refusál will justify a stay or even a dismissal of the proceedings, but the existence of the special circumstance must be . clearly shown.

Appeal by the defendant, Ida Harnden, from an order of the Supreme Court, made at the Hew York Special Term and-entered in the office of the clerk of the county of Hew York on the-22d day ■ of Hovembef, 1909, directing the said defendant to appear before a referee to continue her testimony.

Jerome Eisner, for the appellant. . ■

■ John 8. Wise, Jr., for the respondent.

The parties to this appeal have contrived, whether by intention or not, to convey to the court very little information as to the history or nature of this controversy. It does appear that the plaintiff was, ■in January, 1902, appointed receiver pendente lite of the appellant’s business and bank account. What the nature of the action is, or why a receiver was appointed, is not stated. On October 2, 1905, appellant obtained an order requiring plaintiff to account as receiver and appointing a referee to take and state her account. • She filed no account under this order, but the referee seems to have been able to construct one for her, and reported, as it-is said, in favor of appellant, although the purport of his report is not given. It was discovered that the receiver’s surety had received no' notice of the hearings before the referee, and the matter was referred back to the

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same referee. Still the receiver refused to file an account. . Again the appellant entered upon the task of constructing an account. After testifying in chief, she became ill and was unable to continue or to appear for ■ cross-examination. The order appealed from directs the appellant to appear for cross-examination on or before a day certain, and directs, in one paragraph, that for failure to appear all proceedings on her part shall be stayed, and in another paragraph that for such failure all proceedings on her part are dismissed without further order.

The papers show no justification for either branch of the order. The usual remedy for the failure or refusal of a witness to appear for cross-examination is to strike out his testimony. Undoubtedly there may be circumstances under which the failure or refusal of a party to a proceeding to appear and be examined by his adversary will justify either a stay of proceedings or even a dismissal of the proceeding, but the existence of such special circumstances must be clearly shown. They are not shown here. It was the duty of the plaintiff, a receiver appointed by and representing the court, to account when called upon to do so. This, as it appears, she has refused to do. The appellant is entitled to build up an account as best she may, and is not bound to do it by her own testimony, if other evidence be available. The general statement by plaintiff’s attorney that appellant’s testimony is material and necessary to plaintiff and that the interests of the plaintiff demand that the testimony be not stricken out, but remain upon the record, is a mere conclusion supported by no facts.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and' Miller, JJ., concurred.

Order reversed, with' ten dollars costs and disbursements, and motion denied, with ten dollars-costs.