August v. Fourth National Bank — 31 N.Y. St. Rep. 85

Majority

p. 85

Simon August et al., Resp’ts, v. The Fourth National Bank, App’lt.

(Supreme Court, General Term, First Department,

Filed March 28, 1890.)

Headnote

1. Depositions—De bene esse—Second examination oe witness, when ALLOWED.

An examination of a witness de lene esse may be allowed, although lie was examined on a former trial of the action, where it is shown that his former evidence did not present all the facts within his knowledge which are material and relevant to the case.

2. Same.

Where the presence of the witness at the second trial is important, and it appears that he is in jail under process in a civil suit brought by the plaintiffs, the latter should be required, as a condition of allowing his deposition to be taken, to stipulate that such deposition may be suppressed if they enable him to leave the jurisdiction.

8. Same.

The practice of drawing orders so as to direct such examination in several suits simultaneously is improper, but in this case the error was cured by the direction in the order denying motion to vacate, which directed that the depositions be taken separately.

Appeal from, an order denying the defendant’s motion to vacate an order for the examination of Frederick Fishel de bene esse.

/Samuel TJntermyer, for app’lt; Charles M. Demond, for resp’ts.

This action has once been tried and resulted in a verdict for the defendant. The judgment entered upon that verdict was reversed by the general term. Perhaps the most important witness for the plaintiffs upon the first trial was Frederick Fishel, who testified to a large number of forgeries committed by himself. This witness has been for a long time incarcerated in the Ludlow street jail, in this city, under an order of arrest in an action brought against him by the plaintiffs in this suit. lie is now ill, and the plaintiffs have obtained an order for his examination de bene esse under § 870 of the Code of Civil Procedure. The defendant moved to vacate that order, but the motion has been denied upon conflicting affidavits as to the real condition of the health of the witness. Hpon these affidavits the court below might very well reach the conclusion that it was a more prudent course to allow the testimony of Fishel to be perpetuated, inasmuch as this course could not harm the defendant if the witness should live and be able to attend the second trial, while it might be essential to the rights of the plaintiffs if their anticipations were realized and the witness should die or be physically unable to attend when the case came on for trial a second time.

But the appellant insists that there is no necessity for any examination at all, even to perpetuate the testimony of this witness, inasmuch as he was fully examined upon the previous trial and his testimony taken then can be used in case of his death; and on this point reference is made to the case of Dambmann v. Butterfield, 15 Hun, 495 , where it was held that there could not be a second examination of a party before trial unless special circumstances were shown establishing the necessity therefor.

p. 86

The plaintiffs, however, claim that such circumstances exist in the present case by reason of the fact that the evidence of Fishel upon the former trial by no means presents all the facts within his knowledge which are material and relevant to the case against the defendant. It further appears that the present attorney for the plaintiffs did not represent them upon the previous trial. In the case of Dambmann v. Butterfield, supra, the opinion concedes the propriety of a second examination where new facts have been developed requiring it, or where it appears that there were material omissions in the former examination. The assertion in the affidavit of the attorney for the plaintiffs that Fishel’s testimony upon the previous trial did not present all the facts within his knowledge material and relevant to the issue, fairly imports that there were material omissions in that examination. If the affidavit hacl specified more clearly and in detail what some of those omissions were, it would be more satisfactory; but we think it contained enough to warrant the judge below in holding that a second examination was material and necessary, although in the exercise of his discretion he might very properly have required further proof of that fact.

The learned counsel for the appellant expresses considerable apprehension lest the plaintiffs, after they have completed the examination of Fishel, shall release him from custody under the process in their civil suit and allow him to leave the jurisdiction so that they can read his testimony upon the second trial, and will not be subjected to the disadvantage before a jury of calling as a witness in their behalf a confessed forger who may be obliged to submit to a very disagreeable cross-examination, and one that may not be altogether advantageous to the plaintiffs’ case. Our knowledge of this litigation, derived from the previous appeal, convinces us that the presence of Fishel as a witness in person is extremely important to a just determination of the cause, and his presence ought not to be dispensed with unless it is prevented by unavoidable circumstances. Certainly the plaintiffs should not by any act of theirs be permitted to deprive the defendant of such advantage as may exist in having Fishel testify in person; and as a condition of affirming the order under review they should be required to stipulate that the deposition of the witness may be suppressed if they enable him to leave the j nrisdiction.

An objection is made to the form of the order of examination on the ground that it is entitled in six actions and that it directs the examination of the witness simultaneously in all six suits. The practice of drawing orders in this form is exceedingly objectionable and if this order had to be construed so as to direct a consolidated examination we should not hesitate to reverse it on that account' alone. Six separate orders appear to have been made, however, and the order of Mr. Justice Andrews, denying the motion to vacate, further directed that the depositions of Fishel should be taken separately, and was to this extent a modification of the original order and corrected the erroneous direction’ therein contained, if that is to be interpreted as requiring a combined examination in the six actions.

p. 87

The order appealed from should be affirmed on condition that the plaintiffs stipulate that the deposition of the witness Fishel may be suppressed if, on the trial, it appears to the satisfaction of the court that the said witness has been released from custody in their civil suit by the consent or connivance of the plaintiffs.

Van Brunt, P. J., and Barrett, J., concur.