Cole v. Cole

Headnote

Examination of witness — conditionally, pending the trial of the action —proper.

Appeal from a judgment in favor of the plaintiff and from an order denying a motion made on the judge’s minutes for a new trial, also from an order denying a motion for a new trial made on the ground of newly-discovered evidence, in an action tried at the Hlster Circuit. During the trial of the cause, plaintiff’s counsel stated that Lizzie Cole, a material witness, was ill and unable to be present at the trial, and offered in evidence her deposition, with the affidavits, etc., upon which the order to take the same was granted, taken during the pendancy of the trial, which deposition, against defendant’s objection, was received in evidence.

In regard to the evidence taken conditionally of Lizzie Cole, the court at General Term said : “No objections were made on account of defects in the affidavit or any thing of the kind. The only obje^ tion was that testimony could not be thus taken pending a trial, tno illness of the witness having been of six weeks continuance prior to the trial.

There is nothing in the statute which thus limits the power of the judge. (2 R. S. [m. p.], 391, § 1 et seq.) If the application is collusive, that maybe shown. (§ 4.) If the examination is not fair, that may be shown. (§ 8.) Generally, such examinations are had prior to the trial. But we do not think that the power may not be exercised while the trial is proceeding. Greater caution may be needed in granting the application at such a time.”