Opinion
June 3, 1910.
John S. Wise, Jr., for the appellants.
Edward W.S. Johnston, for the respondent.
This is an appeal from an order vacating a prior order directing that the deposition of Robert T. Cole, a witness on behalf of the plaintiffs, be taken on a day therein named. The affidavits upon which the original order was made complied in all respects with the requirements of section 872 of the Code of Civil Procedure. It also appeared from the affidavits of plaintiffs' attorney and of the witness himself that said Robert T. Cole had been the agent of the plaintiffs, to whom the representations alleged in the complaint had been made by defendants, and by whom the sale of merchandise to defendants had been effected; that he was a non-resident of the State of New York and was only temporarily therein; that he was suffering from heart trouble and was about to leave the State to return to his home in Virginia, and that there was reasonable ground to believe that because of his illness he would be unable to return to the State to attend the trial of this action. For what reason the original order was vacated does not appear, and the only suggestion thereof is to be found in the contention of defendants that because Cole had previously been produced as a witness in open court in litigation between the parties hereto and was an agent and employee of the plaintiffs, that his deposition should not be taken. But the facts set forth as to Cole's non-residence, illness and intention to return to his home are not controverted, and the exception in subdivision 5 of section 872 applies only to a party to an action and not to a person in his employ. The order for the examination of Cole was in conformity with the provisions of section 873 in all respects, and the order vacating it must, therefore, be reversed, with ten dollars costs and disbursements, the application to set the original order aside be denied, with ten dollars costs, and the examination of the witness be directed to proceed on a day to be fixed.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, as stated in opinion, with ten dollars costs. Settle order on notice.