Hyperlawhypertext legal database Rudert v. Blumenkrohn 20 N.Y.S. 614

← Cases

Rudert v. Blumenkrohn

20 N.Y.S. 614 Court N.Y. City Ct. Decision date 1892-10-24 English

Delivered by Ehrlich, C. J.

Contents

Majority

p. 614
Rudert v. Blumenkrohn et al.
(City Court of New York, General Term.
October 24, 1892.)

Headnote

Discovert—Examination of Defendant before Trial—Affidavit.
Where the affidavit on motion for an order for the examination of defendant as witness before trial complies with the former requirements of the statute, (Code Civil Proc. § 872,J and shows the materiality of the evidence and the necessity of the examination before trial, an omission to state definitely that plaintiff intends to use the deposition at the trial is supplied by necessary intendment.
Appeal from special term.
Action by Bichard Budert against Adolph Blumenkrohn and others. From an order denying a motion to set aside an order for the examination of defendants as witnesses before trial, defendants appeal. Affirmed.
Argued before Ehrlich, 0. J., and Van Wyck, J.
Simpson & Wolf, for appellants. Blumenstiel & Horsch, for respondent.

The plaintiff resides in Saxony, and the defendants reside and do business in New York. The order requires the defendants to appear and submit to an examination as witnesses in behalf of the plaintiff in respect to the issues raised by the pleadings. The affidavit upon which the order was granted complies with the formal requirements of the Code.[1] It shows the materiality of the evidence and the necessity of .the examination in advance of the trial. Considering the fact that plaintiff resides in a foreign land, that he could not with any certainty anticipate- what the defendants would testify to at the trial, their examination was both prudential and necessary to meet the exigencies of the trial. The fact that the plaintiff intended to use the deposition at tie trial is not expressed in so many words, yet the purpose to use the same thereat so clearly appears that the omission is supplied by necessary

1 Code Civil Proc. § 872.

p. 615
intendment, and, so long as the fact appears, the rule is satisfied. The rule in regard to these examinations has been liberally extended by the courts, (Herbage v. City of Utica, 109 N. Y. 81 , 16 N. E. Rep. 62 ; Goldberg v. Roberts, 5 Civil Proc. R. 96;) and it can, in furtherance of justice, be applied to this case. We find no error, and the order appealed from must be affirmed, with costs.

Cases cited