Michaelis v. Compania Metalurgica Mexicana

Majority

p. 470

Naomi Michaelis, Respondent, v. The Compania Metalurgica Mexicana, Defendant, and Robert S. Towne, Appellant.

Headnote

Suppression of a deposition — affidavit stating the irregularity complained, of when necessa/ry—what answers to interrogatories are sufficient.

Under section 910 of- the Code of Civil Procedure, providing that a deposition may be suppressed, “ where it appears, by affidavit,” that it was improperly or irregularly taken or returned, a motion to suppress a deposition, because of the witness’ refusal to answer certain cross-interrogatories, should not be granted, where it is made upon the deposition alone, without an accompanying affidavit, unless it appears upon the face, of the deposition that the refusal was deliberate and willful.

The interrogatory, ‘ ‘ Have you received any money or funds of any kind from any person or persons, or the promise of any within the past three months ; if -so, state fully and particularly as to the same ?” is fairly answered by the following reply : “I have received .no money or funds whatever from any one, except what was coming to me for Ihbor performed by me at Sierra. Mojada.” The refusal of a witness, not a party to the action and not connected with the . party at whose instance his deposition was taken, to answer an immaterial question for reasons personal to the witness, does not justify the suppression of the deposition. •

Appeal by the defendant, Robert S„ Towne, 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 7th day of March, 1900, granting the plaintiff’s motion to suppress the deposition of A. C. Michaelis taken under a commission.

p. 471

H. B. Closson, for the appellant.

Edwin M. Felt, for the respondent.

The action was brought to recover the possession of certain stock of the defendant corporation and certain dividends paid thereon. This defendant appellant, answéring, denied the ]ilaintiff’s ownership of the said stock. The appellant procured a commission to be issued to take the testimony of the husband of the plaintiff in the republic of Mexico, and the plaintiff proposed cross-interrogatories which were annexed to the commission. The commission was executed, and after its return the plaintiff moved to suppress the deposition upon the ground that the witness had refused to answer the 8th and 11th cross-interrogatories, and from an order suppressing the deposition this appeal is taken.

By section 910 of the Code of Civil Procedure, it is provided that “ where it appears, by affidavit, that a deposition has been improperly or irregularly taken or returned; or 'that the personal attendance of the witness, upon the trial, could have been procured, with due diligence, by a subpoena; - or that the attorney for either party has practiced any fraud, or unfair or overreaching conduct, to the prejudice of the adverse party, in the course of the proceedings ; an order for the suppression of the deposition may be made by the court upon the application of the party aggrieved, upon notice to the adverse party.” By section 911 it is provided that “ a deposition taken and returned as prescribed in this article * * * may, unless it is suppressed as prescribed in the last section, be read in evidence by either party.”

This motion was made upon the deposition, no affidavit having been submitted which tended to bring the case within section 910 of the Code, before cited, the only, ground upon which the plaintiff based the application to suppress the commission being that the witness had failed to answer two cross-interrogatories propounded to him. It is difficult to see how the court could suppress a deposition unless it appeared that the case was within section 910 of the Code. Section 911 expressly provides that unless a deposition is suppressed as prescribed in section 910, it may be read in evidence by either party. The witness was the husband of the plaintiff, and his depo

p. 472

sition was taken on behalf of the defendant. There was nothing to show that there was collusion of any kind between the witness and the defendant, or that the refusal of the, witness, to answer had been procured by the defendant. While the court below had ample power to order- a commission returned if the cross-interrogatories were not fully answered, there is no authority for suppressing the deposition unless the facts required to be shown by section 910 of the Code appeared u-pon the application. It might well- be that an examination of the commission itself would show that- it had been improperly or irregularly executed, as Was the case in Goldmark v. Metropolitan Opera House Co. ( 22 N. Y. Supp. 136 ), relied mpon by the respondent, for in that case it appeared from an examination of the answers of the witness (the plaintiff’s assignor) that there was a deliberate refusal to fairly and fully, answer the questions' propounded; and this, not by way of mistake, but willfully and-with knowledge that the answers were not as full and complete as required. But we think that there is nothing in this case to bring it within the rule.

The 8th cróss-interrogatory was : “ Have you received any money or funds of any kind from any person or persons, or the promise of any within the past three months; if so, state fully and particularly as .to the same ? ” The witness answered : “1 have received, no money or funds whatever from any one, except what was coming to me for labor performed by me at Sierra. Mojada.” It -would seem that this was a fair answer to the question. It was not proper upon a cross-examination to require a witness to state in detail all sums of money that he had, received from his employers for three months prior to the time of his examination — a period long, subsequent to all of the transactions inquired of in the direct examination.

The 11th cross-interrogatory related to a letter written by the witness to-his wife (the plaintiff in this action). The witness was asked to examine the letter, which was annexed' to the cross-inter-' rogatories, and say whether a statement in that letter relating to a Mr.. Towne referred to this appellant. This statement had nothing to do with the controversy between the parties to this action, had no relation -to the- stock in question, and seemed to be a general observation of the witness to a Mr. Towne and others. Whether or not it related to the defendant in the action, or to some other Mr.

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Towne, was entirely immaterial; and the letter could not he competent evidence upon the trial of the action. The cross-interrogatory was, therefore, entirely immaterial. It appeared to be a confidential communication between the witness and his wife, having no relation to any issue in the action, and the refusal of the witness, not a party to the action and not connected with the party at whose instance his deposition was taken, to answer an immaterial question for reasons personal to the witness, did not justify the court in suppressing the deposition.

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

Van Brunt, P.- J., Rumsjiy, Patterson and Hatch, JJ., concurred.

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