Templeton v. County of Broome

6 A.D.2d 738, 174 N.Y.S.2d 106, 1958 N.Y. App. Div. LEXIS 5808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1958
• Status: Published

Opinion

Appeal from an order of a Special Term, Supreme Court, Broome

County. In this action against the County of Broome and a deputy sheriff of the county arising from a motor vehicle collision, the defendants sought to take before trial the deposition of an eyewitness on the ground “special cireuinstances” exist within the definition of section 288 of the Civil Practice Act. The witness is not shown to be connected with or under the control of the plaintiffs; and the factual basis for the “special circumstances” claimed is that the witness has refused to give the defendants a statement of the facts of the accident. A passenger in the car of the plaintiff Marie F. Templeton’s intestate at the time of the accident has given the defendants two statements; and they seem to have available also the testimony of a passenger in the defendant county’s car. The pressing need for the deposition of the witness involved on this motion is not shown; nor does the record sustain the contention of appellants that “special circumstances” justify the taking of the deposition. (Cf. Giunta v. City of New York, 273 App. Div. 974.) Order unanimously affirmed, with $10 costs and disbursements. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.