Henry v. Henry
New York Surrogate's Court
Motion by Evan J. Henry, decedent’s father, for an order directing commissions to issue for the examination of certain non-resident witnesses, in proceedings instituted by him for the revocation of probate of decedent’s will; opposed by Sarah M. Henry, proponent of the will, and a beneficiary named therein.
1Opinion of the Court
The Surrogate.
I adhere to the opinion that I. expressed in Cadmus v. Oakley (2 Dem., 298), that an application for a commission to take the testimony of a witness without the State, ought not to be denied merely because the moving party has failed to set forth facts and circumstances calculated to satisfy the court that such testimony is material. But, when the party opposing the application has made it appear that the witnesses sought to be examined could not probably give any material testimony, the moving party is bound to disclose what facts he intends to prove.
Under such circumstances,…
2Cases cited7 opinions
- Ruger v. . HeckelNew York Court of Appeals · 1881
- Uline v. New York Central & Hudson River RailroadNew York Court of Appeals · 1879
- Whitney v. . TownsendNew York Court of Appeals · 1876
- Arthur v. . GriswoldNew York Court of Appeals · 1875
- Miller v. PorterNew York Supreme Court · 1859
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3Cited by1 opinion
- In re PlumbNew York Supreme Court · 1892