Bigler v. Duryee

The moving affidavit is as follows: “James Bigler, of the city of New-burgh, cotinty of Orange, and state of New York, being duly sworn, says that he is the plaintiff in the above-entitled action. That said action was commenced on the — day of March, 1893, by the above-named plaintiff, this deponent, who resides at the city of Newburgh, against Joseph W. Duryee, the above-named defendant, who resides at the city of New York; and said action is now pending in the supreme court, and the place of trial is in the county of Orange. That said defendant has appeared and answered by Messrs. Norwood & Coggeshall, as his attorneys, whose office address is No. 140 Nassau street, New York city, and that the plaintiff, this deponent, has appeared by B. A. Brewster, as his attorney, whose office address is No. 45 Third street, Newburgh, N. Y. That said action is brought to recover the balance due on a promissory note, as more fully appears by the complaint, a copy of which is annexed hereto, and marked ‘Exhibit A,’ and made a part of this affidavit. That the nature of the defense of this action fully appears by the answer, a copy of which is annexed hereto-, and marked ‘Exhibit B,' and made a part of this affidavit.- That the testimony of the said defendant, who resides in the city of New York, in the county of New York, is material and necessary for the plaintiff, and for the prosecution by the plaintiff of the said action. That the following facts and circumstances render the examination of said defendant material and necessary: That the action is brought upon a promissory note for $11,400, signed with defendant’s name, dated July 1, 1876, and payable on demand, as appears more fully supra; that defendant does not deny the making and delivery of the note; that payments were made to plaintiff on account of said note, by or on behalf of defendant, at different times; that the last of said payments was made within six years next before the commencement of this action; that said payments were stated to plaintiff, by or on behalf of defendant, to be made on account of said note, and the indebtedness represented thereby; that it does not appear from the discharge in bankruptcy set forth in defendant’s answer that said note, or indebtedness represented thereby, was included therein; that the payments alleged by plaintiff to have been made on account of said note, and as to which defendant’s examination is sought, were made by an exchange through the mail of notes between the plaintiff and defendant,—the difference between the notes, when paid, being applied by plaintiff on account of this indebtedness, pursuant to the letters accompanying the notes; that the notes purporting to be signed by deféndant were forwarded by mail to plaintiff in letters, not signed by defendant, but signed by one Bloomer, stating that he signed them on behalf of defendant; that plaintiff does not know whether he acted for defendant or not; that he does not know where said Bloomer now is, nor can be found, nor what his authority was; that the'notes claimed by the plaintiff to be those of the defendant given in exchange for plaintiff’s notes are no longer in the possession of plaintiff, nor does plaintiff know where they are; that unless plaintiff proves these payments the note in suit is barred by the

statute oí limitations, which is pleaded in the answer; that if plaintiff waits until the trial of the case he cannot prove his case, because he cannot procure the attendance of said Bloomer or said defendant at that time, and without their testimony he cannot prove the agency of said Bloomer, or the execution and delivery of said notes; that, even if plaintiff could find said Bloomer, he might, in the trial, deny that he was authorized to sign these letters, and thus defeat plaintiff, and defendant, by denying the authority of said Bloomer, by leaving the jurisdiction at the time of trial, could prevent plaintiff from proving this affirmative part of the case, for under the plea of the statute he need not be present at the trial, in order to succeed; that the above facts sought to be proved by the examination of defendant are not known to plaintiff; that plaintiff makes this application in good faith, and cannot prove said facts except by the testimony of defendant; that said defendant resides at No. 39 West Ninety-Seventh street, in the city of New York, and regularly transacts his business in the city of New York; that no previous application has been made herein for an order for the examination of said defendant; that said examination is to be had for using the testimony as evidence upon the trial of said action.”

Norwood & Coggeshall, (Charles B. Reid, of counsel,) for appellant.

E. A. Brewster, (Eugene D. Hawkins, of counsel,) for respondent.