Dambmann v. Metropolitan Street Railway Co.

97 N.Y.S. 91 | N.Y. App. Div. | 1905

Ingraham, J.:

The plaintiff having made a motion for a commission to examine a Dr. Alfred Walton as a witness upon oral questions, upon the hearing of the motion the defendant interposed a preliminary objection on ' the ground that the affidavits upon which the order to show cause was granted did not state the legal residence of the witness sought to be examined.. The. court sustained this, objection and denied the motion, with leave to renew. The action was brought to rec’over for per- ■ sonal "injuries sustained by the plaintiff, in being violently thrown . from; one of the defendant’s cars. The affidavit upon which the motion was made stated that Dr. Alfred’ Walton, who had been ■ examined upon.a former trial of the action* was"a material and necessary witness for the plaintiff upon the new trial, as he was- an eye-witness to the accident, was the first physician who attended the plaintiff after the accident,-and was the physician in charge of -the plaintiff’s case for some weeks thereafter. It was further alleged , upon information and’ belief that he is not now in the State* but in the State of Rew Jersey, the grounds of the plaintiff’s belief being-the-statement made by Dr. Walton to the plaintiff ’ on or about the 29th day of September, 1905, on which occasion he said that he» resided in Rew Jersey and intended to remain there and would not - be in Rew York for some months. In án additional affidavit submitted by leave of the court the plaintiff .alleged that she did not‘kno w the exact place of Dr, Walton’s residence; that she had inquired'of his son, who stated that he did not know his father’s exact residence, ..and that Dr. Walton himself refused to say just where he lived ; that she saw him at Morristown, R. J,, on the street. There was also presented an affidavit of one of the plaintiff’s attorneys, who says that he communicated with Dr. Walton by telephone, who stated that his testimony could be taken by commission issued. to Orange, Essex county, R. J., but that he had no knowledge of the exapt place of residence of Dr. Walton. ' ' / -

I know of no section of the Code of Civil Procedure which requires a party to an action seeking to examine on commission a witness, who is out of the State to be required to state the exact place of residence of said witness. Section 887 provides that in a case specified in the next section, where it appears by affidavit, on the application of either party, that the testimony of one or more witnesses, not within the State, is material to the applicant, a commission may be issued to one or more competent persons named therein, authorizing them or any one of them to examine the witness or witnesses named therein under oath, etc. The facts shown bring this case within section 888 of the Code of Civil Procedure. The testimony of this witness is material and necessary for the plaintiff; he is no longer a resident of the State of Mew York, but resides in the State of Mew Jersey and is at present out of this State. The mere fact that the witness has been seen in Mew York in a restaurant does not tend to disprove the facts alleged.

I think, therefore, that the plaintiff was entitled to a commission to examine the witness upon interrogatories. There is nothing, however, in the papers to justify an oral examination of the witness.

It follows that the order appealed from should be reversed and the motion granted for an examination upon written interrogatories and cross-interrogatories, with ten dollars costs and disbursements.

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed and motion granted as stated in opinion, with ten dollars costs and disbursements.