Michel v. Colegrove — 61 N.Y. Super. Ct. 278

Majority

p. 278

FREDERICK MICHEL, et al., Appellants v. JAMES B. COLEGROVE, Respondent.

Headnote

Judgment, motion to vacate, and to suppress the deposition of a witness improperly obtained.

The motion was founded upon affidavits. The court below held that such a motion should he made upon a case and exceptions, as well as the affidavits, and therefore denied the motion with leave to renew upon such case. Held, that the court below correctly indicated the practice to he followed in such a case, and that the order was properly granted.

Before Dugro and Gildersleeve, JJ.

Decided July 5, 1892.

Appeal from an order of the special term, dated November 12, 1891, denying plaintiffs’ motion to set aside a judgment of the special term and suppress the deposition of a witness, with leave to renew on case and exceptions, in addition to affidavits.

Henry Daily, Jr., attorney for appellants.

Thornall, Squires & Pierce, attorneys, and Franklin Pierce of counsel, for respondent.

This order denied the motion of plaintiffs to set aside the judgment of the special term herein, and to suppress the deposition of one George Battelson, with leave to renew the motion; so made, upon a case and exceptions, in addition to the affidavits, upon which alone the motion was made.

Plaintiffs’ motion was founded on affidavits setting forth the fact that since the entry of the judgment here

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in plaintiffs had learned that defendant, who had caused the testimony of one Battelson to be taken by commission in London, had, previous to the execution of the commission, written said Battelson a letter, enclosing a copy of the interrogatories, and indicating the answers that said witness should give, which instructions were duly followed by said witness; and plaintiffs asked to have said deposition suppressed and the judgment set aside on this newly-discovered evidence. The court held that such a motion should be made on a case and exceptions, as well as the affidavits setting forth the nature of the newly-discovered evidence, and denied the motion, with leave to renew on such case.

We are of opinion that the court below correctly indicated the practice to be followed in such a case, and that the order was properly granted. Holmes v. Evans, 13 N. Y. Supp., 610 ; Anonymous, 7 Wend., 331 ; Warner v. Western Transportation Co., 5 Robt., 499; see also, Russell v. Randall, 123 N. Y., 436 .

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dugro, J., concurred.