Opinion
April 27, 1931.
Denman, Bevier Scotti, of New York City, for the motion.
Davidson Davidson, of New York City (Louis B. Davidson, of New York City, of counsel), opposed.
At Law. Action by Frank Seiden against the Concordia Fire Insurance Company of Milwaukee. On motion to suppress deposition, taken de bene esse, under title 28, U.S. Code, § 639 ( 28 USCA § 639), formerly Rev. St. § 863, of a state employee temporarily sojourning at Albany whose domicile is in New York City.
Motion denied.
This motion is denied in all respects.
I. The question here involves the suppression of the deposition, taken under title 28, U.S. Code, § 639 ( 28 USCA § 639) formerly Rev. Stat. § 863, of a witness who is a state employee engaged in work as inspector of motor vehicles for New York State, with official headquarters at Albany, and temporary residence also in that city.
II. The fact that the legal residence of witness is in New York City is immaterial. The question is one of a witness' place of temporary sojourn, not of his domicile. Cf. Frost v. Barber (C.C.) 173 F. 848; Bagdan Milk Co. v. Dairymen's League Co-operative Association (D.C.) 44 F.2d 855. This is obvious because the civil subpœna does not run beyond 100 miles from the place of the trial. U.S. v. Southern Pacific Co. (D.C.) 230 F. 270, 272; Russell v. Ashley, 21 Fed. Cas. 33, 34, No. 12150, and note.
If witness is available at time of trial, of course, the deposition cannot be used. Objecting party must show availability. Russell v. Ashley, 21 Fed. Cas. 33, 34, No. 12150; Merrill v. Dawson, 17 Fed. Cas. 86, 97, No. 9469; Patapsco Ins. Co. v. Southgate, 5 Pet. 607, 617, 8 L. Ed. 243.