122 N.Y.S. 1068 | N.Y. Sup. Ct. | 1910
This is a motion by the defendant to vacate an order directing the examination of one Harry R. Vibbard and to suppress the deposition taken pursuant thereto.
If the deposition of Harry Vibbard in his own action against this defendant had been taken, such deposition could not have been used on the trial of this action. Murphy v. New York Central & Hudson River Railroad Co., 31 Hun, 358. The court in that case was construing section 881 of the Code of Civil Procedure and not section 830 thereof. Its attention was necessarily devoted to section 881, for that
The deposition in question was sought to be taken under the authority of section 871 of the Code of Civil Procedure, which reads, in part: “ The deposition of a person not a party, whose testimony is material and necessary to a party to an action, * * * or to a person who expects to be a party to an action about to be brought in such a court, by a person other than the person to be examined, may also be taken as prescribed in this article.”
It is urged, and with substantial reasons, that under this section no deposition could be taken, because Dora Vibbard, individually, could never bring an action for her husband’s death, and as executrix she was not yet existent when the application was made; therefore she was not, individually or otherwise, a person who expected to be a party to an action about to be brought. If the language of this section is to be construed strictly, the reasoning is obviously sound. On the other hand, if it be held that neither under this section nor under the common-law practice could the deposition be used, then in no case and by no means could the testimony of an injured person about to die be preserved for use in favor of his next of kin, though every objection to such testimony had been obviated by the fullest cross-examination conducted'by the party to be sued. It does not appear to me that courts, by technical rules of evidence, intend the suppression of truth, for if this deposition is excluded that will appear to have been their sole aim.
Depositions de bene esse taken in advance of the bringing of an action were permitted at the common law without statutory authorization. Packard v. Hill, 7 Cow. 489. “ The necessity of this mode of taking testimony may as often occur before as after any pleadings in the cause.” Mumford v. Church, 1 Johns. Ch. 150.
The sections of our Code applicable to the subject aré, in many respects, only declaratory of the common law. “A statute sometimes attempts to provide for the admission, under the present rule, of testimony at a former trial, as well as of ordinary depositions taken in the same or other proceedings, and of depositions taken in perpetúan memoriam. But it is worth noting that usually the effect of the common law principle would be even broader than the statute’s terms and. would suffice to admit, even where the case is not covered by the phraseology of the statute; i. e. the statute merely secures admissibility in certain instances and is not intended to forbid admission in other instances.” Wigmore, § 1388. In Bradley v. Mirick, 91 N. Y. 293,
As the sole test at common law was the adequacy of the opportunity previously afforded for cross-examination, I entertain no doubt that, independently of the Code section, this deposition would be receivable.
Nor do I think that the technical, narrow and strict construction claimed for section 881 of the Code should be given to it. This plaintiff was not, at the time she made her application, a person who, in her then capacity of an individual, had any proper expectation of being a party to an action. She did, however, expect soon to become executrix and, in that capacity, soon to bring suit. She was, therefore, in a sense, a person who expected to be a party to an action. It was not necessary that she should then have a present cause of action. Matter of Nolan, 70 Hun, 536; People v. Crowley, 25 App. Div. 175.
It was enough that she, with reason, anticipated being interested in an action at an early date, wherein the testimony of the person about to die would become essential. Any other view of section 881 would lead to the conclusion that the Legislature intended the exclusion of material evidence from an action, although every hearsay feature had been removed therefrom and no person could be unduly prejudiced thereby, solely and only from a motive to suppress the truth and to foster an injustice.
The motion to suppress is denied, with ten dollars costs.
Motion denied, with ten dollars costs.