p. 72Emelea Pusey Warner, as Executrix, etc., of Alfred D. Warner, Deceased, Appellant, v. John E. Dockendorff, Respondent.Headnote
Deposition — examination of witness not party — when order for examination should not be granted — non-resident witness having established business in this State.An order for the examination of a witness, not a party to an action, should not be granted upon the ground that he is about to depart from the State when it appears that, although Ms residence is in an adjoimng State, he comes regularly every week into tMs State for the transaction of business at an established office, and there is notMng to show that he has an intention to remain away from tMs jurisdiction.
The words “ About to depart from the State,” as used in section 872 of the Code of Civil Procedure, mean to depart without intention or reasonable likelihood of an early return.
Appeal by the plaintiff, Emelea Pusey Warner, as executrix, 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 the 20th day of September, 1917, denying her motion to vacate an order for the examination of a witness who is not a party to the action, and refusing to set aside a subpoena duces tecum served on said witness.
Charles P. Robinson, for the appellant.
George C. Lay, for the respondent.
The basis for the order permitting an examination of the witness for the purpose of perpetuating his testimony was that the witness was about to depart from the State. The sole ground assigned for this conclusion was that the witness resides at Pine Orchard, Conn., where he has an office. But it also appears without contradiction that the witness is a member of a New York city firm and has an office at 30 Church street, borough of Manhattan, where he attends regularly every week and usually twice in each week. “ About to depart from the State,” as used in section 872, subdivision
p. 735, of the Code of Civil Procedure, means to depart without intention or reasonable likelihood of an early return. Here it is shown by the affidavit of the witness not only that he has no intention whatever of remaining away from the jurisdiction but that his business requires his presence in the city every week. It is a well-known fact that tens of thousands of persons having their places of business in the city depart each night for their homes in adjoining States. Clearly it was not the intention of this provision of the Code to permit the cross-examination of an adverse witness before trial upon a mere showing that the witness resides without the State, where it appears that the witness can readily be served with process at a regularly maintained address within the jurisdiction.
The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate and set aside the order granted, with ten dollars costs.
Clarke, P. J., Scott, Smith and Davis, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.