Van Son v. Herbst

215 A.D. 563, 214 N.Y.S. 272, 1926 N.Y. App. Div. LEXIS 11011

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1926
• Status: Published

Opinion

Martin, J.

The plaintiff sued to recover damages for an alleged breach of contract. He was required by an order properly entered to submit to an examination before trial. The examination was commenced on March 11, 1925, and continued on September 2, 1925. Within a fortnight after each of these occasions the testimony was transcribed and sent to plaintiff’s attorney. After it had been finally verified counsel for defendant Herbst discovered that it had been corrected in some thirty-five places. These corrections vary from slight changes in figures to very substantial changes, some of them accomplished by adding a clause or sentence to an answer as originally made. There is none, however, which might not have been properly made when the witness was interrogated.

It is urged for respondent that the corrections and interlineations destroy the probative value of the deposition and substitute for plaintiff’s testimony that of his attorney, and that he should be required to sign the transcript as prepared by the stenographer,

Though rule 129 of the Rules of Civil Practice provides that “ a deposition, when completed, must be read carefully to the person examined and subscribed by him,” this merely expresses the requirement that the witness subscribe his testimony. That he must do so without making such changes in it as are properly to be made, in order to have it conform to his more deliberate recollection of the facts, is not directed by the rule. Otherwise there would be no need of having the transcribed testimony read before it is signed. It is read so that corrections may be made and we see no changes, such as plaintiff might not properly have caused to be made. Indeed the new matter would have to be very remarkable or quite unresponsive and unjustified by the questions to require its exclusion.

We are of the opinion that neither McNally, Inc., v. Chapin (197 App. Div. 792) nor Matter of Samuels (213 Fed. 447) contain any statements which will sustain the order. There are several authorities holding that such an order is improper. (See Harrison v. Thackaberry, 248 Ill. 512; Matter of Hafer, 65 Ohio St. 170; 18 C. J. 695.)

We are not now required to decide as to what use may be made at the trial of the fact that appellant corrected his testimony at a time subsequent to his examination.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Clarke, P. J., Dowling, Finch and McAvoy, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.