Keenan v. O'Brien — 5 N.Y.S. 490

Majority

p. 490

Keenan v. O’Brien et al.^[1]

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

Deposition—Order for Examination.

An order in favor of a party to examine himself in a foreign country upon commission should not be granted when he is absent on account of a criminal charge-which he evades.

Appeal from special term, Yew York county.

From an order granting leave to issue a commission to examine plaintiff,. John Keenan, who is in Canada, although a resident of this state, John. O’Brien and Heman Clark appeal.

Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.

Leslie W. Russell and JS. T. Lomtt, for appellants. George Bliss, for respondent.

It is apparent that the plaintiff in this action is absent from the state because of the indictments which are pending against him, and is brought directly within the rule laid down in the case of McMonagle v. Conkey, 14 Hun, 326 , in which case it was held that, where a plaintiff had fled to Canada to avoid criminal arrest, under the circumstances such plaintiff should not have a commission to examine himself; and where the plaintiff is a fugitive from justice, having gone to Canada to escape trial on an indictment found against him in this state, and is therefore unwilling to submit to the authority of this court, and refuses to come into this state to give testimony, that in the exercise of a sound discretion the commission should not be granted. In this view we concur. It is not the case of a plaintiff who cannot coiné to testify, but it is that of a plaintiff who refuses to come to testify, and by his absence is refusing to submit to the authority of our courts. Such a plaintiff, being a resident of the state, certainly cannot call upon the facilities of the- court to enable him to continue to evade its authority. The order should be reversed, with $10 costs and disbursements.

Macomber and Bartlett, JJ., concur.