Jackson ex dem. Green v. Kent

7 Cow. 59 | N.Y. Sup. Ct. | 1827

Sutherland, J.,

(in delivering the opinion of the court,) said, the preliminhry objections to giving in evidence the deposition of Jasper Graham, were properly *overruled.

The objection at the trial was not specifically to proving the service of notice of Graham’s examination before the commissioner, by affidavit. It was in general terms, to the preliminary proof. If it had. been made expressly to the nature of the evidence of service, it might have beén obviated by calling the witness who made the service, and swore to the affidavit. He was probably in court; for he was the attorney in the cause, and one of the lessors.

It .was a proper case for an. examination de bene esse, within the decision in Mumford v. Church, 1 John. Cas. 147. It is more favorable to the opposite party, thaii an examination upon interrogatories under a commission; and more likely to elicit truth. Instead of being discouraged, I think it merits bhe countenance of the court, where it is certain or probable that the personal attendance of the wit~ ness cannot be procured upon the trial.

*The shortness of the notice to the defendant's attorney, of the intention to examine Graham before the commis-' sioner,' it is stated in the case, was not objected to before the commissioner; but the objection to his examination was on other grounds. The evidence offered to the court was, therefore, properly overruled at nisi prius. If the objection had been taken before the commissioner, the time might have been enlarged.

Judgment for the plaintiff, for one-fifth of the premises.