Harburger v. Westchester Fire Insurance — 167 A.D. 1

Majority

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Julius Harburger, Sheriff of the County of New York, and Charles Abresch and Charles Abresch, Jr., Copartners, Doing Business under the Firm Name and Style of Charles Abresch & Son, Respondents, v. Westchester Fire Insurance Company, Appellant.

First Department,

March 26, 1915.

Headnote

Depositions—examination before trial, within State, of witness for defendant—sufficiency of affidavit — “ special circumstances ” within meaning of Code of Civil Procedure.

A motion for the examination before trial of a witness for the defendant residing in this State, who, in all probability, will be available at the trial, should not be granted upon the ground that the witness has close relations with the defendant, constituting “ special circumstances ” why such an examination should be granted within the meaning of subdivision 5 of section 872 of the Code of Civil Procedure, where there is nothing in the witness’ relations with the defendant which would induce him to swear falsely, and where he has already freely furnished such information as has been sought from him.

Appeal by the defendant, Westchester Fire Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on or about the 23d day of Feb

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ruary, 1915, resettling an order which denied the defendant’s motion to vacate an order for the examination of a witness before trial.

Leo Levy, for the appellant.

Edward B. Boise, for the respondents.

This is an action in aid of an attachment against the property of Berger and Fischer, a foreign corporation. It is sought to recover the proceeds of an insurance policy issued to said corporation by the defendant, under which a loss occurred.

The witness sought to be examined is an insurance broker who had to do with the adjustment of the loss insured under the foregoing policy.

Subdivision 5 of section 872 of the Code of Civil Procedure provides that the affidavit upon which an order for such an examination as is here sought shall show: “If an action is pending, that the person to be examined is about to depart from the State, or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special circumstances exist which render it proper that he should be examined as prescribed in this article.”

It appears that the witness to be examined lives in New Rochelle and has an office for the transaction of business in the city of New York; that he is in good health and expects to be available as a witness upon the trial, and no reason is shown to indicate a probability that he will not be so available. The plaintiff is, therefore, called upon to show that “ special circumstances” exist which render it proper that the witness should be examined before trial. He attempts to do this by showing that the witness has close relations with the defendant and is, therefore, presumptively hostile to the plaintiff. There is nothing, however, to suggest that there is anything in the witness’ relations which would induce him to swear falsely as a witness, or to withhold any relevant fact from plaintiff. On the contrary, he appears to have already freely furnished such information as has been sought from him.

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The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.