Hubbard v. Nearpass

Headnote

Examination before trial—Condition.

It is within the power of the court to impose as a condition to the granting of an order for the examination of a plaintiff as a witness, before trial, that such deposition may be read by plaintiff on the trial, should defendants fail to read the same.

Appeal from an order made by Justice Bartlett, at. special term, on the 4th day of December, 1888.

The portion of the order complained of by appellant is the condition therein stated, which directs “that plaintiff’s motion to vacate or modify defendant’s order, for the examination of the plaintiff before trial, be granted, unless defendants stipulate that the deposition sought may be read by plaintiff on the trial hereof, in case defendants fail to read the same.” The order for the examination of the plaintiff before trial was procured from the county judge of Orange county, on the 27th day of October, 1888, and was procured on affidavit of defendant, Nearpass. At folio 74 of affidavit of defendant, Nearpass, it is stated ; “Deponent further says that he expects to use plaintiff’s deposition on the trial of this action, if he is allowed to take it.” Plaintiff’s affidavit for order to show cause why the order of the county judge, for his examination before trial, should not be vacated or modified, discloses clear reasons for the granting of the order made therein. On the return of that order, plaintiff urged the bad faith of defendants in the examination sought, on the ground stated in plaintiff’s affidavit, and upon the further ground that the defendants did not intend, in good faith, to read or use the depositions on the trial of this action, but would avail themselves of the legal restrictions on plaintiff in using the same against the deceased person, whose estate defendants represent.

The court thereupon granted plaintiff’s motion to vacate the order for plaintiff’s examination, unless defendants stipulated that plaintiff might read deposition in case defendant failed to read.