Higginson v. Second National Bank

New York Supreme Court

Higginson v. Second National Bank

6 N.Y.S. 172, 60 N.Y. Sup. Ct. 129, 25 N.Y. St. Rep. 499, 53 Hun 129, 1889 N.Y. Misc. LEXIS 478

DecidedJuly 2, 1889

StatusPublished

This text of 6 N.Y.S. 172 (Higginson v. Second National Bank) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Higginson v. Second National Bank, 6 N.Y.S. 172, 60 N.Y. Sup. Ct. 129, 25 N.Y. St. Rep. 499, 53 Hun 129, 1889 N.Y. Misc. LEXIS 478 (N.Y. Super. Ct. 1889).

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Opinion

Barnard, 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 properly taken. Wait v. Whitney, 7 Cow. 69. The statute covers transient witnesses from other states and countries who happen to be here, as well as residents of the state who are about to leave the state. Packard v. Hill, Id. 489. There was no fraud in the affidavit, or even a suppression of the truth. The affidavit stated that the witness proposed to leave the state on the 18th of February, 1889. He had promised to cometo Brooklyn on the 12th, and he expected to return to Connecticut, and proposed to be in Brooklyn on the 12th of February, 1889, and leave the state again on the next day, and the examination could be taken under section 872 of the Code, The order should therefore be reversed, with costs and disbursements.

Pratt, J., concurs.

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Barnard, 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 properly taken. Wait v. Whitney, 7 Cow. 69. The statute covers transient witnesses from other states and countries who happen to be here, as well as residents of the state who are about to leave the state. Packard v. Hill, Id. 489. There was no fraud in the affidavit, or even a suppression of the truth. The affidavit stated that the witness proposed to leave the state on the 18th of February, 1889. He had promised to cometo Brooklyn on the 12th, and he expected to return to Connecticut, and proposed to be in Brooklyn on the 12th of February, 1889, and leave the state again on the next day, and the examination could be taken under section 872 of the Code, The order should therefore be reversed, with costs and disbursements.

Pratt, J., concurs.

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Bluebook (online)

6 N.Y.S. 172, 60 N.Y. Sup. Ct. 129, 25 N.Y. St. Rep. 499, 53 Hun 129, 1889 N.Y. Misc. LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higginson-v-second-national-bank-nysupct-1889.

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