Higginson v. Second National Bank — 25 N.Y. St. Rep. 499

Majority

p. 499

Charles S. Higginson, App’lt, v. The Second National Bank of New York, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Deposition—Examination de bene esse—Affidavit.

An affidavit to obtain an order to examine a witness de bene esse, containing a statement that the witness is about to depart from the state to

p. 500

remain permanently, is not objectionable, although when the affidavit was ma le the witness was not in the state, where it appears that the witness had agreed to come into the state on a certain day to bo examined and expected to return home the following day.

Appeal from an order made by Mr. Justice Bartlett at special term, suppressing the deposition of George W. Fuller, a witness on behalf of the plaintiff, taken cle bene esse, under an order made by Mr. Justice Cullen.

The order under which the deposition was taken, was made on the affidavit of Mr. Edwin W. Sanborn, one of the attorneys for the plaintiff.

This affidavit contained, among other things, the averment, that the said George W. Fuller, as deponent is informed by him, and verily believes, is about to depart from the city of Brooklyn, Kings county, New York, and from this state for his said house at Norwich, Connecticut (to remain permanently there), on the afternoon of Wednesday, February 13, 1889.

Defendant moved to suppress the deposition on the ground that the statement in the affidavit was “ misleading, concealed the real facts and misrepresented the same,” because the witness, when the affidavit was made, was not within this state, but subsequently came here at plaintiff’s request.

Clark & Sanborn, for app’lt; Baker, Stillman & Hubbard, for resp’t.

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 plaintiffs, defendant’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 13th of February, 1889, to remain permanently. The witness was not in the state when the affidavit was made. The examination of a witness who resided 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, 7 Cow., 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 13th of February, 1889. He had promised to come to Brooklyn on the 12th, and be examined. If the affidavit had stated that Fuller lived in Connecticut, and proposed to be in Brooklyn on the 12th of February, 1889, and leave the state again on the next day, the examination could be taken under section 872 of the Code.

p. 501

The order should, therefore, be reversed, with costs and disbursements.

All concur.