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Downing v. McKillop, Walker & Co.

117 N.Y.S. 961 Court N.Y. App. Term Decision date 1909-06-25 English

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p. 961
DOWNING v. McKILLOP, WALKER & CO.
(Supreme Court, Appellate Term.
June 25, 1909.)

Headnote

Depositions (§ 36[1] )—Application fob Commission—Affidavit.
An attorney’s affidavit for a commission to take a deposition, which gives no reason why it is not made by the party, and merely refers to the witnesses as being of “Berlin, Germany,” without alleging that they are absent from the state, is insufficient.
[Ed. Note.—For other cases, see Depositions, Cent. Dig. § 51; Dec: 'Dig. I 36.[1] ]
Appeal from City Court of New York, Special Term.
p. 962
Action by Frank Downing-against McKillop, Walker & Co. Plaintiff obtained an order for the issuing of a commission to take the deposition of witnesses, and defendant appeals.
Reversed.
Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.
Arthur E Fullman, for appellant.
Dulon & Roe, for respondent.

This action was commenced on July 14, 1906, and was duly placed on the calendar and noticed for trial in October, 1907; On May 7, 1909, plaintiff obtained an order for the issuing of a commission to the United States consul at Berlin to take the deposition of certain witnesses " on behalf of plaintiff. Defendant appeals.

The plaintiff seems to have been guilty of rather pronounced laches in waiting until the case had been- reached for trial, and Was about to be" reached again for trial, having been on the calendar since October; 1907. The order contains a stay of the trial, but provides that the commission shall issue and the testimony shall be filed “at a date early enough to permit the trial to proceed before adjournment for the summer vacation.” The affidavits upon which the order for the. commisr sion "was based were made by the plaintiff’s attorney, and no reason is given for their not having been made by the plaintiff, nor do the affidavits specifically allege that the parties to be examined are actually not with'in' this state/ but they merely refer to the proposed witnesses as being “of Berlin, Germany.” Under the authority of Fox v. Peacock, 97 App. Div. 500 , 90 N. Y. Supp. 137 , the affidavits do not seem to be sufficient.

The- order must be reversed, with $10 costs and disbursements, and the-motion denied, with $10 costs, said costs to abide "the event of the action/and without prejudice to such other motion or motions as plaintiff may see fit to make in the court below.

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