¶1Upon careful consideration of the opinions in Preston v. Hencken, 9 Abb. N. C. 68, and in Williams v. Folsom,, 3 N. Y. Supp. 681, 5 N. Y Supp. 211, we are clear that the reasoning of the learned chief judge in the decision appealed from proceeds upon the more solid grounds, and conducts to the more consistent and satisfactory conclusion. Accordingly the order is-affirmed on the opinion at special term. Order affirmed, with costs.
13 N.Y.S. 914
McVity v. Stanton
New York Court of Common Pleas
Decided April 6, 1891
New York Court of Common Pleas · decided 1891-04-06
<p>1. Deposition of Fabty to Action.</p> <p>The provision in Code Civil Froo. N. Y. § 872, suhd. 5, authorizing the taking of the deposition of a person “about to depart from the state, ”or who is sick or infirm, etc., that “this subdivision does not apply to a case where the person „to be examined is a party to the action, ” has no application to the taking of the deposition of a party to an action at his own instance before trial, under the amendment of section 870, enacted in 1878; there having been previously no provision for taking such a deposition. Disapproving Preston v. Heneken, 9 Abb. N. C. 68, and Williams v. Polsom, 3 if. Y. Supp. 681, and 5 N. Y. Supp. 211.</p> <p>2. Same.</p> <p>That a party to an action is employed as a traveling salesman, and is thereby compelled to be absent from the state for months at a time, and that he is about to leave the state in the course of such employment, is sufficient ground for permitting his deposition to be taken before trial, on his own application, under Code Civil Proc. N. Y. § 870, as amended in 1873, allowing the deposition of a party to be taken “ at his own instance. ”</p>
Decided 1891-04-06