Higginson v. Second National Bank — 6 N.Y.S. 172

Majority

p. 172

Higginson v. Second Nat. Bank of New York City.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

Deposition—Examination De Bene Esse.

Where a witness resident in another state agrees with a party to an action to come into this state to be examined de bene esse, on a certain day, and expects to return to his home on the following day, an affidavit for an order for such examination, which states that the witness is about to depart from this state on the day following the one agreed on, to remain permanently, is not misleading or objectionable, though made when the witness was not in the state.

Appeal from special term, Kings county.

Action by Charles S. Higginson against the Second Hational Bank of the City of Hew York. Plaintiff obtained an order to take the deposition of a witness, Fuller, de bene esse, but, on defendant’s objection that plaintiff’s af

p. 173

fidavit was “misleading, concealed the real facts, and misrepresented the same,” the deposition was suppressed, and from this order plaintiff appeals.

Argued before Barnard, P. J., and Pratt, J.

Clark & Sanborn, (Edwin W. Sanborn, of counsel,) for appellant. Butler, Stillman cG Hubbard, for respondent.

The affidavit upon which the order was obtained to examine the witness Fuller was in due form. Fuller lived in the state of Connecticut, and by an arrangement with the plaintiff’s attorney agreed to come into this state on the 12th day of February, 1889, to be examined de bene esse. The affidavit contained a statement that the witness Fuller was about to depart from this state to his home on the 18th of February, 1889, to remain permanently. The witness was not in the state when the affidavit was made. The examination of a witness who resides in a foreign state, who happens to be here, is properly taken. Wait v. Whitney, 7 Cow. 69 . The statute covers transient witnesses from other states and countries who happen to be here, as well as residents of the state who are about to leave the state. Packard v. Hill, Id. 489. There was no fraud in the affidavit, or even a suppression of the truth. The affidavit stated that the witness proposed to leave the state on the 18th of February, 1889. He had promised to cometo Brooklyn on the 12th, and he expected to return to Connecticut, and proposed to be in Brooklyn on the 12th of February, 1889, and leave the state again on the next day, and the examination could be taken under section 872 of the Code, The order should therefore be reversed, with costs and disbursements.

Pratt, J., concurs.

Cases cited

Wait v. Whitney 7 Cow. 69 N.Y. Sup. Ct. p. 173