Opinion
November 6, 1908.
William W. Niles, for the appellant.
Franklin Nevius, for the respondents.
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 employ of defendants, was an important witness for the plaintiff; that Shannon avoided the service of a subpœna and the defendants refused to give any information as to his whereabouts, or to afford an opportunity to subpœna him; that the plaintiff then procured the services of a detective who located Shannon, but three weeks were consumed in serving the subpœna on him. It thus appears that Shannon would be a hostile witness controlled by the defendants and in their employ; and that the defendants have refused to give any information as to his whereabouts when he was wanted as a witness. The order for Shannon's examination was vacated by the court below upon the ground that as Shannon was not a party to the action he could not be examined, except under subdivision 5 of section 872 of the Code of Civil Procedure, and that the fact that the plaintiff had difficulty in effecting service of a subpœna upon the witness in another action does not constitute a special circumstance under subdivision 5 of section 872 of the Code which justifies an order for the examination of a witness under that subdivision.
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 subpœna, 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 with section 882, which provides that "such a deposition * * * shall not be so read in evidence until it has been satisfactorily proved that the witness is dead, or is unable personally to attend by reason of his insanity, sickness or other infirmity, or that he is confined in a prison or jail; or that he has been and is absent from the State, so that his attendance could not, with reasonable diligence, be compelled by subpœna." The evident intent of these provisions was to enable any party to have the testimony of a material witness perpetuated when it appears there was danger that the attendance of the witness could not be secured at the trial by reason of the disability of the witness or his absence from the State. What the applicant had to show was, that the witness was about to depart from the State, or was sick or infirm, "or that any other special circumstances exist which render it proper that he should be examined" before the trial, instead of at the trial, and the question is whether the facts here disclosed are "other special circumstances" which would justify the taking of the testimony before the trial. The statute does not prescribe what those other circumstances must be. It was quite clearly intended that the circumstances must be such as would justify the conclusion that the deposition could be read under section 882 of the Code. The proof required is quite different from that required when adverse parties are to be examined, and still these provisions should receive a reasonable interpretation; and where the special circumstances disclosed justify a well-grounded apprehension that the witness, either from physical infirmities, or his confinement in a prison or jail, or his absence from the State, could not be produced at the trial, the evidence should be taken before the trial so that his deposition could be read under section 882. It is impossible to lay down any general rule which would include all cases in which such an examination should be had. It would not be enough to show that a witness would endeavor to evade the service of a subpœna. Where, however, it does appear that the witness is under the control of the adverse party; that the adverse party had before refused to give any information which would enable the party making the application to subpœna him; that he has but to cross the Hudson river to be out of the State, so that his attendance could not be compelled by subpœna, such circumstances together with the other circumstances here disclosed, are "other special circumstances" which, under subdivision 5 of section 872 of the Code, entitled the appellant to the order.
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 `other' 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 dollars costs.
McLAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.