Foster v. Bullock — 19 N.Y. Sup. Ct. 200

Majority

p. 200

GARDNER FOSTER, Appellant, v. RUFUS B. BULLOCK, Respondent.

Headnote

Deposition, of party tabeen conditionally — blow it must be tabeen — form of certificate to.

Under tlie provisions of section 6 of 2 Revised Statutes ([2d ed.], 313), in relation to the taking of depositions, providing that the deposition “shall be carefully read to and subscribed by such witness; shall be certified by the officer taking the same,” etc., the certificate must state that the deposition has been read to the witness and subscribed by him; and such reading must take place in the presence or, at least, under the general supervision of the officer taking the same, and it must be subscribed in his presence.

Appeal from an order made at the Special Term suppressing a deposition of the .plaintiff.

The motion was made on the ground that there was no certificate attached to it as required by law. The paper commenced with the following statement:

“ Examination of plaintiff, taken conditionally, pursuant to annexed order,” and ended as follows :

“ GARDNER FOSTER.

“ Sworn before me, this 30th day of October, 1876.

• “R. L. Larbamore,

“J. G. P.

1,1 Filed November 1,1876.”

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The following affidavit was submitted on tbe part of tbe plaintiff', showing tbe manner in which tbe deposition was taken:

“--, of said city, being duly sworn, says : I am one of tbe attorneys for tbe plaintiff; as appears by tbe affidavits, order and proof of service annexed to tbe plaintiff’s deposition filed on tbe fourth of November last, proceedings were duly and regularly taken for tbe examination óf tbe plaintiff, conditionally; before tbe return day of said order, tbe plaintiff duly appeared in tbe chambers of tbe Supreme Court in tbe court-house at tbe city of New York, for examination before tbe justice there presiding, and at tbe same time there appeared besides deponent, as the’ plaintiff’s counsel, also tbe defendant in person and - -, Esq., counselor-at-law, as defendant’s counsel to attend such examination. Thereupon, in tbe presence of tbe defendant and bis said counsel, tbe paintiff was duly sworn. Thereafter tbe said chambers of said court being crowded with many persons, tbe plaintiffs, with tbe assent of tbe defendant and bis said counsel, and in their company, went into a neighboring room for the purpose of submitting to examination. I then propounded to tbe plaintiff questions upon bis direct and re-direct examination, and said--, as counsel for tbe defendant, questions upon bis cross-examination, I taking down bis replies thereto, tbe defendant and bis said counsel being present during tbe whole examination. After tbe examination was completed tbe same was carefully read to tbe plaintiff by me, and be then subscribed tbe same and accompanied by tbe defendant and bis said counsel, went into said chambers and swore to the same before Justice Larramore, then sitting in tbe same, and said justice thereupon subscribed bis name to tbe certificate of said deposition. Tbe certificate was drawn in tbe presence of tbe defendant and bis counsel, and tbe plaintiff’s and said justice’s signature were also affixed in their presence. * * * Tbe examination of tbe plaintiff was taken in tbe usual manner in tbe said district, and tbe certifying portion of said examination, viz.: ‘ Examination of tbe plaintiff, taken conditionally pursuant to tbe annexed order — city and county of New York, ss., Gardner Foster being duly sworn says ‘ Cross-examined,’ £ re-direct,’ and £ sworn before me this 30th day of October, 1876,’ are all in tbe usual and customary form, as I verily believe.’ ”

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Townsend c& Weed, for the appellant.

John II. White, for the respondent.- ■

This is an appeal from an order made at the Special Term iir Albion, suppressing a deposition of the plaintiff for certain alleged informalities. The alleged informalities are that the deposition was not reduced to writing by Justice Larramore, or read over to tbe witness in bis presence, and no sufficient certifícate of tbe taking thereof is attached to tbe same. Tbe deposition was produced on tbe bearing of tbe motion, and shows tbe examination of tbe witness both direct and cross, taken by question and answer, and commences with tbe recital, “ examination of plaintiff taken conditionally, pursuant to tbe annexed order.” It purports to be signed by tbe witness and to it is attached tbe ordinary jurat to an affidavit, “ sworn before me tbis 30th day of October, 1876, R. L. Larramore, J. C. P.”.

Tbe statute provides that “such deposition shall be carefully read to and subscribed by such witness; shall be certified by tbe officer taking tbe same.” (2 R. S. [2d ed.], 313, § 6.) Tbe statute does not prescribe tbe form of tbe certificate. Tbe certificate in tbis instance, taking it altogether, is a certificate that tbe examination was taken conditionally pursuant to tbe annexed order, and was sworn to before tbe justice who was at tbe time specified, sitting in tbe chambers of tbe Supreme Court at New York, and tbe examination commences with a recital to tbe effect that tbe witness was duly sworn. Tbe order annexed prescribes no form for tbe examination or for its verification.

In McDonald v. Garrison ( 18 How. P. R., 219 ) tbis subject received an elaborate examination by Mr. Justice J. F. Daly, of tbe New York Common Pleas. In tbe opinion in that case be comes to tbe conclusion that tbe examination of a witness need not be reduced to writing by tbe band of tbe judge before whom it is taken, but be may employ an amanuensis, but that tbe officer who takes tbe examination must see that tbe testimony is carefully read over to tbe witness, and that tbe witness subscribes tbe same with a full understanding of its contents. Though tbe statute does not provide what tbe certificate of tbe officer shall contain, it states that it shall

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be carefully read over to tbe witness and subscribed by him, and be certified by tbe officer taking tbe same. What is to be certified by the officer taking the same ? Obviously, as it seems to us, the fact that the examination has been read to, and is subscribed by, the witness.

The certificate in this case does not purport to be to the effect that the witness in fact “ subscribed ” the deposition, or that it was read over to him before doing so, and from the account given in the affidavit of the plaintiff’s attorney of the manner in which this deposition was taken, in accordance, as he says, with the usual practice in such cases in New York, it is apparent that the deposition was not read over to the witness in the presence of Judge Larramore, or subscribed in his presence, so that he could not certify to either fact. Perhaps the judge would not be required to see to the reading of the deposition in detail, with a view to be able to testify that it was in all respects correctly read, but the reading should at least be under his general supervision, and the deposition should be subscribed in his presence.

The counsel for the plaintiff insists that the certificate can now be amended, and that the order of the Special Term should have granted leave to amend, but the affidavit of the plaintiff’s attorney shows that the certificate cannot be truly amended so as to show that the deposition was read over to the witness, or that it was subscribed in the presence of the judge.

Order appealed from, suppressing the deposition of the plaintiff, affirmed with ten dollars costs of the appeal and disbursements.

Present — Talcott, P. J., Smith and Merwin, JJ.

Ordered accordingly.