#### John Stapleton, Appellant, *v.*Mazie N. La Shelle, as Executrix, etc., of Kirke La Shelle, Deceased, Respondent.

(No. 3.)

First Department,

March 6, 1908.

Deposition — departure of witness from State — statute construed.

The provisions of sections 871 and 873 of the Code of Civil Procedure, allowing the taking of testimony of a witness not a party who is shown to be about ¿o depart from the State, etc., is based upon the possibility that the witness will not be available at the time of trial. If he be available at that date he must be produced by subpoena, and his deposition cannot be read.

An application for the examination of a witness who is about to depart from the State on a theatrical tour should not be denied merely because his route has been mapped out, .if it be uncertain whether he will be in this State at the time of trial. Under such circumstances it would be unreasonable to require the moving party to take the evidence in some distant State by commission.

Appeal by the plaintiff, John Stapleton, from an order of the Supreme Court, made at the New York Special Term and entered *662in the office of the clerk of the county of. New York.on the 24th day of June, 1907. . •

*Benno*Loewy, for the appellant.

*Joseph■ E. Freeman*of counsel *[Stover, Hall <&*FreemanJ, for the respondent.

Clarke, J.:

This is an appeal from, an order vacating an order for the examination of a witness before trial. ■ Section 871 of the Code of Civil Procedure provides that “ the deposition of a person not a party,whose testimony is material and necessary to a party to an action pending in a court of record, * * * may also be taken as prescribed in this article.” Section 872 provides that the affidavit to be presented to the judge should, among other things, set forth as follows: *“5.*If an action is pending, ,thaü the person to be examined is about to 'depart from the State,1 or that he is so sick or infirm, as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special Circumstances exist, which render it proper that-he- should be examined as prescribed in this article. * * * 7. Any other fact necessary to show that the case comes within one of. the two- last sections.”.

The affidavits presented upon the application for tlie order for the examination complied with the technical requirements' of the Code and the rules,* and set up that the witness,, whose testimony was desired to be taken *(Le lene esse,*was about- to leave the city of Hew York for the west; that it was impossible to determine for any length of time in advance where said witness would be at any given date, impossible to determine when the case would be' reached for trial, and impossible to state whether or not the witness would be in the city of Hew York at the time of the. trial of the action. The learned court, in its order vacating the order which had been granted for the examination, stated: *“*It appearing by the statement of said Cornelius Gardiner in open court and before me upon said motion, that said Gardiner has a fixed and determined route made out for him by which bis whereabouts during various times *663can be determined, and his whereabouts from time to time actually known, the said statément being unchallenged and uneontradicted, and it appearing that said order was improvidently and improperly granted,” the same was vacated and set aside.

Tlie'ground upon which the order was vacated, as stated in the order itself, was not sufficient warrant for the action of the court. The provisions of law providing for the taking of testimony and the perpetuation of the same are based -upon the possibility that the witness will not be available at the time of the' trial. If he is old and infirm, or sick or a non-resident temporarily within the State, or a resident about to go beyond the State, his deposition may be taken in the interests of justice. If he is available upon the trial, if he can be reached by subpoena, "lie must be produced and the deposition may not be read, and, therefore, no possible harm can be done to the opposite side; if, however, when the trial does take place the anticipated contingency which authorized the taking of the deposition has happened,- and the attendance of the witness cannot be compelled, then the beneficent purpose of the statute is realized.

In the particular case at bar, upon other appeals involving the taking of testimony upon commission, this court has expressed the opinion that in view of the nature of the controversy, namely, a suit brought against an executrix based upon an alleged oral contract with the decedent, of which, in the nature of things, she could not be expected to have personal knowledge, a provision for an oral cross-examination of the witnesses to be examined upon said commissions by the plaintiff would have been proper. (See *Stapleton*v. *La Shelle, No. 1,*124 App. Div. 333; *Id. No. 2,*Id. 335.)

If this order had not been vacated the testimony of this witness would have been taken before a justice of the court in the courthouse in the city of New York, and full opportunity would have been given for such oral cross-examination. When we take into consideration the uncertainty of the date of trial, coupled with the exigencies of the theatrical profession which require its members to travel throughout the United States, the vacation of an order made upon proper papers and for good reason for an examination *de bene esse,*does not commend itself to ns as in the interests of justice. Under such circumstances to require in lieu of such examination *664the taking -. of the. evidence in some distant. State- by commission, seems unreasonable.

The order appealed from should, therefore, be re versed,, with ten dollars costs and disbursements to the appellant, andvthe motion denied*, with ten dollars costs,

Patterson, P. J., Ingraham, McLaughlin, and Scott, JJ., concurred. ■

. .. - - I

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

*

 See General Rules of Practice, rule 82.— [Rep.