112 N.Y.S. 785 | N.Y. App. Div. | 1908
Upon an affidavit of the plaintiff’s secretary an order was granted directing that one Thomas Shannon appear at the Special Term of this court and be sworn and examined as a witness for the plaintiff. ■From this affidavit it appeared that the plaintiff was a domestic corporation ; that the action was brought to recover a sum of money which, by mistake, had been overpaid by the plaintiff to the defendants. The defense is a general denial. It is then alleged that the testimony of one Shannon is material and necessary for the plaintiff upon the trial of the action as, at the time of the' transactions involved, Shannon was the foreman for the defendants in charge of the- work,-in .paying for which the overpayment was made; that such foreman, Shannon, was present during a large portion of the time that the work was in progress upon the premises, superintending the same and had knowledge of the services rendered by the defendants to or for the plaintiff; that in an action against the plaintiff which came on . for trial in April last Shannon, then in the
' The ground of the application to examine Shannon was that, from the facts and circumstances stated, there was a well-grounded apprehension that the plaintiff would be deprived of his testimony if it depended upon his presence at the trial; that Shannon’s relation to the defendants, his action in evading service of a subpoena, when his testimony was required in another action, and defendants’. action in respect to his attendance justified the conclusion that unless the plaintiff could perpetuate his testimony there was serious danger of its being deprived of the benefit of his testimony upon the trial of the action. •
The question is whether, by the statement of these facts, the plaintiff brought itself within subdivision 5 of section 872 of the Code. By that section, to entitle a party .to an action to examine a witness, not an adverse party, before the trial, he must present to judge an affidavit setting forth that “the person to be examined is about to depart from the State; or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special circumstances exist which render it proper that he should be examined as prescribed in this article.” This provision should be read in connection
The cases cited by the respondent ( Wood v. Hoffman Co.. 121 App. Div. 636 ; Diefendorf v. Fenn, 125 id. 651) are not in point. In Town of Hancock v, First National Bank (93 N, Y. 86), in speaking of subdivision 5 of section 872 of the Code, the court said : “ These 'other5 circumstances evidently mean such as.will make the presence and evidence of the witness at the trial doubtful and uncertain, and relate to his personal condition and purposes as bearing upon the probability of his future attendance.” We think that upon these special facts and circumstances the order for the examination of Shannon should not have been vacated.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order denied, with ten dolíai s costs. .
McLaughlin, Clarke, Houghton and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs '