Ridert v. Blumenkrohn — 48 N.Y. St. Rep. 517

Majority

p. 517

Richard Ridert, Resp’t, v. Adolph Blumenkrohn et al., App’lts.

(City Court of New York, General Term,

Filed October 24, 1892.)

Headnote

Depositions—Examination before trial.

Where the plaintiff resides in a foreign land, and cannot with any certainty an'icipate what the defendants will testify to on the trial, and the evidence sought is material and necessary, it is proper to order an examination of the defendants before trial.

Appeal by defendants from order denying motion to set aside order for examination of said defendants as witnesses before trial

Simpson & Wolf, for app’lt; Blumenstiel & Hirsch, for resp’ts.

The plaintiff resides in Saxony, and the defendants reside and do business in New York. The order requires the defendants to appear and submit to an examination as Witnesses in behalf of the plaintiff in respect to the issues raised

p. 518

by the pleadings. The affidavit upon which the order was granted complies with the formal requirements of the Code. It shows the materiality of the evidence and the necessity of the examination in advance of the trial.

Considering the fact that plaintiff resides in a foreign land, that he could not with any certainty anticipate what the defendants would testify to at the trial, their examination was both prudential and necessary to meet the exigencies of the trial.

The fact that the plaintiff intended to use the deposition at the trial is not expressed in so many words, yet the purpose to use thecsame thereat so clearly appears that the omission is supplied by necessary intendment, and so long as the fact appears, the rule is satisfied.

The rule in regard to these examinations has been liberally extended by the courts, Herbage v. City of Utica, 109 N. Y., 81 ; 14 St. Rep., 845 ; Goldberg v. Roberts, 5 Civ. Pro., 96, and it can in furtherance of justice be applied to this case.

We find no error, and the order appealed from must be affirmed, with costs.

Van Wyck, J., concurs.