Hewlett v. Wood — 14 N.Y. Sup. Ct. 227

Majority

p. 227

ABRAHAM HEWLETT, Respondent, v. SAMUEL A. WOOD and others, Appellants.

Headnote

Deposition — completion of, necessa/ry.

A. deposition taken under the provisions of the Revised Statutes for perpetuating the evidence of witnesses (3 R. S. [5th Ed.], 681-683], must be completed before it can be subscribed by the witness or certified by the officer taking it. These are both acts which must be performed before any right to file it can exist. Before the examination has been completed, the deposition cannot regularly he subscribed, certified, or filed. (Cole v. People, 2 Bans., 370 ; 43 N. Y., 508 .)

Appeal from orders denying motions made to suppress a deposition. It appeared that the direct examination was had, the evidence signed by the witness, and certified by the judge, and the matter then adjourned to another day, for the purpose of a cross-examination. The sickness of the witness prevented a cross-examination ever being had, and the evidence taken was filed in the clerk’s office.

Abraham Waleeman, for the appellant. E. T. Schencfe, for the respondent.

Opinion by

Davis, P. J., concurred.

Order reversed; order to be entered directing depositions to be taken from the files and returned to Mr. Justice Pratt, to proceed with cross-examination of witness, according to the understanding existing when the parties were before him on May 15, 1815 ; costs to abide event.