Higginson v. Second National Bank
New York Supreme Court
Appeal from special term, Kings county. Action by Charles S. Higginson against the Second Hational Bank of the City of Hew York. Plaintiff obtained an order to take the deposition of a witness, Fuller, de bene esse, but, on defendant’s objection that plaintiff’s affidavit was “misleading, concealed the real facts, and misrepresented the same,” the deposition was suppressed, and from this order plaintiff appeals.
1Opinion of the CourtBarnard, P. J.
The affidavit upon which the order was obtained to examine the witness Fuller was in due form. Fuller lived in the state of Connecticut, and by an arrangement with the plaintiff’s attorney agreed to come into this state on the 12th day of February, 1889, to be examined de bene esse. The affidavit contained a statement that the witness Fuller was about to depart from this state to his home on the 18th of February, 1889, to remain permanently. The witness was not in the state when the affidavit was made. The examination of a witness who resides in a foreign state, who happens to be here, is…
2Cases cited1 opinion
- Wait v. WhitneyNew York Supreme Court · 1827