4 N.Y.S. 257 | N.Y. Sup. Ct. | 1889
The order directing the examination of Eva Brumfield as a witness before the trial of the action was applied for by the plaintiff, and granted by a justice of the supreme court, and the order directed that such examination should be taken before a referee, who was appointed for that purpose. Such examination was taken, and the deposition was signed by the witness, who was not a party to the action. Upon tlie application of the defendants, the special term vacated such order, and suppressed the deposition, and the plaintiff lias appealed to this court from such order of the special term. The orden for the examination was applied for by the plaintiff, and granted by the justice, pursuant to sections 871-873
The deposition shows that the defendants were allowed great latitude in the examination of such witness, not only in regard to the subject-matter involved in the action, but also in reference to the matrimonial and other affairs of the witness, as bearing upon her credibility as a witness. The witness stated, in response to the questions put to her by the defendants’ counsel, as to the time she purposed to start for California, that she intended to start on the Thursday following, and that she purposed to remain there at least a year. The following questions were asked by the defendants’ counsel, which, under advice, the witness refused to answer, and the referee decided that under the circumstances she should not be required to answer the same. The questions and the rulings of the referee are at folio 377, as follows; “Question. You say you are about to leave the state? ■ Answer. Yes. Q. When are you going? A. Thursday. Q. Have you a ticket? A. Hot yet. Q. Where are you going? A. To California. Q. What part of California? A. Los Angeles. Q. Are you going to reside there? A. Expect to, for a time. Q. Eor how long? A. I don’t know. Q. Are you going on a visit? A. I am going on business. Q. What business ? Mr. Dennison. You need not answer, unless you have a mind to. A. Then I decline to answer; it is my personal business; nothing to do with Morford & Brown whatever. My reason for declining is, I cannot see that it relates to the matter in hand at all. Q. Is the business that you are going on certain to keep you there any definite length of time? A. Ho. Q. Are you under any arrangement to remain there any definite length of time? A. I think I will remain there a year, any way. Q. Are you under any arrangement to remain there a year? (Plaintiff objects to the question, upon the ground that it does not touch the matter at issue here, and is not relevant to the issue. It is her private business. She cannot be forced to disclose her private contracts, etc.; and I ask a ruling from the referee on it. The Referee. The referee decides such a question on behalf of the defendants is improper before him at this hearing, upon the ground (1) that the order upon which this examination is no w proceeding before him as referee states that the witness is to submit to an examination concerning the matters relevant to the issues in this matter; and (2) upon the ground
Considering the latitude of examination allowed by the referee to the counsel for the defendants, as appears by the deposition, and the nature of the action, and of the questions which were propounded to the witness, and which she declined to answer; and keeping in mind the right of the defendants to object at the trial to the receiving of such deposition, and the further right to object to questions and answers contained therein, upon the grounds specified in the provisions of the Code to which reference has been made; and regarding also the great delay on the part of the defendants in making the motion to vacate the order, and to suppress the deposition,—we are satisfied that the learned justice at special term was not j ustified in granting the order appealed from. We have seen that the Code secures to a party the right, upon a sufficient application, to an order directing the examination of a witness who is about to depart from the state; and when such order has been regularly granted, and the examination thereunder has been taken, in the presence of the respective parties to the action or their counsel, and the deposition has been signed by the witness, who thereafter has departed from the state, and therefore is beyond the jurisdiction of the court to compel the attendance of such witness at the trial, the facts should disclose a very clear case to justify the court at special term in vacating such order, and suppressing the deposition. We are constrained to hold that the defendants failed to make a case at special term which justified the order appealed from. We cannot doubt the power of this court to review such order of the special term, even though it only involved the inquiry whether judicial discretion had been properly exercised in making the order complained of. We conclude that the order of the special term should be reversed, with $10 costs and disbursements for printing. All concur.
These sections provide for granting an order to take the depositions of witnesses not. parties to the action, on the applicant’s presenting a certain prescribed affidavit.