Sherwood v. Dolen

21 N.Y. Sup. Ct. 191

• Court: New York Supreme Court
• Decided: May 15, 1878
• Status: Published

Opinion

Gilbert, J.:

The objection of the defendant Gilchriest to subscribing the minutes of his examination was, that: “ the minutes did not correctly set forth what he had said, and represented him as saying what he had not said, and which he claimed to be untrue.” The papers do not show that the objection was not well founded in fact. But it is claimed that notwithstanding the minutes do not record what the deponent actually stated, the error can be corrected by a supplementary statement at the end of the deposition. We think that is an erroneous position. Persons examined under oath, are entitled to have their depositions accurately taken down in the first instance. If that is done, and they desire after-wards to correct their testimony, it' is proper to do so in the mode suggested by Harris, J., in Corning v. Tooker (5 How. Pr. 16.) But when the testimony actually given has been taken down erroneously, the -witness has a right to have the minutes, changed so as to conform to the testimony actually given by him. The court has no power to compel a witness to subscribe his name to a statement which is not strictly true, even though the falsity of it be declared by a supplementary entry in the minutes, for that would be unjust to the witness. If the minutes be in fact correct, or if incorrect they have been properly corrected, the witness may be compelled to subscribe his name to them, but not otherwise. (Rule 30.)

The order must be affirmed with costs and disbursements.

Present — Barnard, P. J., and Gilbert, J.; D teman, J., not sitting.

Order affirmed with ten dollars costs and disbursements.