Kent v. Fraser

181 A.D. 813, 168 N.Y.S. 1036, 1918 N.Y. App. Div. LEXIS 4044

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1918
• Status: Published

Opinion

Jenks, P. J.:

The motion called for an exercise of discretion by the trial court. (Paine v. Aldrich, 133 N. Y. 544; Whitney v. Whitney, 76 Hun, 585; Smith v. Alker, 102 N. Y. 87.) As the question before us is whether the order made was right (Baylies N. T. & App. [2d ed.], 404, citing People v. New York Central & H. R. R. R. Co., 28 Hun, 546), we shall not discuss the process by which the learned court reached its conclusion. It appears from the affidavit of the moving party that when the present war between this country and the German Empire was declared, the absent witness was a resident of. Berlin, Germany, and, as the affiant is informed and believes, the witness is now in Germany or in the service of the German government and in its army.

It does not appear where the witness is, or, unless the presumption of life applies, whether he still lives. The affiant further states that the testimony of the witness cannot be taken by mail and that it is impossible to communicate with him. Such “ utter occlusion ” is natural to the state of war, and it must be considered that it will continue during the war. (The Rapid, 8 Cranch, 155, 161; Griswold v. Waddington, 16 Johns. 438, 471, 482, per Kent, C.) We think that the learned court did not err in an exercise of the discretion reposed in it, and that the order should be affirmed. (Lowenstein v. Greve, 50 Minn. 383; Carberry v. Burns, 68 Miss. 573. See, too, Cahill v. Hilton, 31 Hun, 114.)

The order is affirmed, with ten dollars costs and disbursements.

Thomas, Putnam, Blackmar and Kelly, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.