Harburger v. Westchester Fire Insurance Co.

Full title: JULIUS HARBURGER, Sheriff of the County of New York, and CHARLES ABRESCH…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 26, 1915

167 App. Div. 1 (N.Y. App. Div. 1915)

152 N.Y.S. 272

Opinion

March 26, 1915.

Leo Levy, for the appellant.

Edward B. Boise, for the respondents.

SCOTT, J.:

This is an action in aid of an attachment against the property of Berger and Fischer, a foreign corporation. It is sought to recover the proceeds of an insurance policy issued to said corporation by the defendant, under which a loss occurred.

The witness sought to be examined is an insurance broker who had to do with the adjustment of the loss insured under the foregoing policy.

Subdivision 5 of section 872 of the Code of Civil Procedure provides that the affidavit upon which an order for such an examination as is here sought shall show: "If an action is pending, that the person to be examined is about to depart from the State, or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special circumstances exist which render it proper that he should be examined as prescribed in this article."

It appears that the witness to be examined lives in New Rochelle and has an office for the transaction of business in the city of New York; that he is in good health and expects to be available as a witness upon the trial, and no reason is shown to indicate a probability that he will not be so available. The plaintiff is, therefore, called upon to show that "special circumstances" exist which render it proper that the witness should be examined before trial. He attempts to do this by showing that the witness has close relations with the defendant and is, therefore, presumptively hostile to the plaintiff. There is nothing, however, to suggest that there is anything in the witness' relations which would induce him to swear falsely as a witness, or to withhold any relevant fact from plaintiff. On the contrary, he appears to have already freely furnished such information as has been sought from him.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.