Johnson v. New Home Sewing-Machine Co. — 70 N.Y.S. 875

Majority

p. 875

JOHNSON v. NEW HOME SEWING-MACH. CO.

(Supreme Court, Appellate Division, First Department.

June 7, 1901.)

Headnote

1. Witness—Deposition—Relevancy.

Code Oiv. Proc. § 871, provides that the deposition of a person not a party to an action may be taken, if the testimony is material or necessary. Held, that an affidavit by plaintiff as to what he expected to prove by a witness which did not allege that plaintiff had had any conversation

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with the witness, or other facts tending to show that the witness would testify as plaintiff expected, was not sufficient to show that the testimony was material, so as to justify an order to take his deposition.

■2. Same—Sickness—Evidence—Sufficiency.

Oode Civ. Proc. § 872, declares that the person desiring to take a deposition may present an affidavit that the person to be examined is so sick or infirm as to afford reasonable grounds for believing that he will not be able to attend trial. Held, that an affidavit by plaintiff’s attorney that in October, 1900, a certain witness informed affiant that he had. been an invalid since the preceding spring; that in December, 1900, the witness’ attorney filed an affidavit in the supreme court that on April 15, 1899, the witness, when supposed to be in a dying condition, was operated on for appendicitis; and that the witness was unable to attend to his professional duties until December, 1900,—was not sufficient to show' that the witness was sick, so as to justify an order March 9, 1900, to take his deposition; there also being an affidavit by the witness that he had regained his health.

Appeal from special term, New York county.

Action by John A. Johnson against the New Home Sewing-Machine Company. From an order denying defendant’s motion to vacate an order for the examination of a witness before trial, defend.ant appeals.

Reversed.

Argued before HATCH, McLAUGHLIN, PATTERSON, O’BRIEN, ■ and LAUGHLIN, JJ.

Charles E. Mahony, for appellant.

Edwin R. Leavitt, for respondent.

The order was granted under sections 871, subdivisión 5 of 872, and 873 of the Code of Civil Procedure, upon the theory that the witness was “so sick or infirm as to afford reasonable ground to believe that he. will not be able to attend the trial.” The order must be reversed upon two grounds: (1) It is not ■sufficiently shown that the witness is material; and (2) it is.not sufficiently shown that he is so sick or infirm as to afford reasonable .ground for believing that he will not be able to attend the trial.

1. The only moving affidavit relating to the materiality of the witness is that of the plaintiff, who merely states what he “expects” to prove by the testimony of the witness whose examination is sought to be had. Plaintiff does not state that he has had any conversation with Albright, or disclose any fact or circumstance tending to show that he has any reasonable ground for his expectation with reference to the testimony that may be given by Albright. Tilton v. Insurance Co., 1 Abb. N. C. 348 ; Hale v. Rogers, 22 Hun, 19 ; Chapin v. Thompson, 16 Hun, 53 ; Thurfjell v. Witherbee, 70 Hun, 401 , 402, 24 N. Y. Supp. 278 ; Rheinstrom v. Weir, 5 App. Div. 109 -112, 38 N. Y. Supp. 1030 ; White v. Hall, 8 App. Div. 618 , 40 N. Y. Supp. 945 ; Lyman v. Gramercy Club, 28 App. Div. 30 -34, 50 N. Y. Supp. 1004 .

2. The order was granted on the 9th day of March, 1901, and the moving affidavits were verified on the preceding day. The affidavit with reference to the illness of the witness was made by plaintiff’s attorney. It is to the effect that on the 19th day of October, 1900, Albright informed affiant “that since the preceding spring he has

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been an invalid and dangerously ill, and expected to die at anytime”; that on the 27th day of November, 1900, affiant was informed, by Albright’s attorney “that said Albright was then seriously ill,, having undergone an operation for appendicitis, and was not expected to live”; and that on the 29th day of December, 1900, Al-bright filed an affidavit in a proceeding pending in the supreme court stating, in substance, that he was attacked with appendicitis-on the 1st of April, 1899, and that on the 15th day of the same-month, when he was supposed to be in a dying condition, he underwent an operation for appendicitis, and was unable to leave his apartment until the last of June, when he went to Europe for his health,, and was “unable, by reason of such sickness and malarial poisoning, to attend to his professional work” until about the 15th of December, 1900. Defendant read in opposition to the motion an affidavit of Albright showing that he was, and had been since the 15th day of December, 1900, perfectly well, and attending to his professional business. The affidavit, even if it tended to show the serious illness of the witness many months prior to the making of the motion, but failed to show any fact or circumstance indicating the continuance of the illness or inability, would be clearly insufficient to comply with the reasonable requirements of these provisions of the Code; and, manifestly, when it appeared that the witness had regained his health, the order granted for his examination should have been vacated.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur; HATCH, J., on second ground.

Cases cited

White v. Hall 8 App. Div. 618 N.Y. App. Div. 1896-07-31 p. 876