Majority
p. 163Clark v. Manhattan Railway Co. (Court of Appeals, Filed March 26, 1886.)
Headnote
Deposition—Examination op witness in extremes—Code Civil Procedure, § 880.Defendant had the evidence of a dying witness taken by a referee under sections 879, 880, Code Civil Procedure. It was late on Saturday night, and the stenographer did not write out his notes, and, without objection on the part of counsel for plaintiff, it was agreed that the minutes be written up and subscribed the following Monday, which was done, neither counsel being present, after the testimony had been read over to the witness. Held, that the counsel for plaintiff waived his right to be present, and that the court erred in suppressing it.
Edward S. Rapallo, for appellant.
Chauncey S. Traux, for respondent.
It is not claimed that any harm or prejudice came to the plaintiff because the deposition was read to and subscribed by the witness in the absence of his counsel. We have carefully considered all the facts appearing in the affidavits, and are of opinion that plaintiff’s counsel must be held to have waived his right to be present at or to have notice of the reading of the deposition to the witness on the Monday after it was taken, and that, therefore, the court erred in suppressing it. The orders of the general and special terms should be reversed, and the motion denied, with costs of the appeal to the general term and to this -court, and ten dollars costs of the motion.
All concur, except Rapallo, J., absent.