Johnson v. New Home Sewing Machine Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, the New Home Sewing Machine Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of April, 1901, denying the defendant’s motion to vacate an order theretofore granted in the action for the examination before trial of one George W. Albright,- as a witness for the plaintiff.
1Opinion of the Court
Laughlin, J.:
The order was granted under sections 871, subdivision 5 of 872, and 873 of the Code of Civil Procedure, upon the theory that the *158witness was “ so sielc or infirm as to afford reasonable ground to' believe that he will not be able to attend the trial.”
The order must be reversed upon two grounds: (1) It is not sufficiently shown that the witness is material, and (2) it is not sufficiently shown that he is so sick or infirm as to afford reasonable ground for believing that he will not be'able to attend the trial.
First. The only moving affidavit relating to the materiality of the…
2Cases cited2 opinions
- Rheinstrom v. WeirAppellate Division of the Supreme Court of the State of New York · 1896
- Tilton v. United States Life InsuranceNew York Court of Common Pleas · 1876
3Cited by2 opinions
- Avery v. AllenAppellate Division of the Supreme Court of the State of New York · 1903
- Avery v. AllenAppellate Division of the Supreme Court of the State of New York · 1903