#### Dora Vibbard, as Executrix of the Goods, Chattels, and Credits of Harry R. Vibbard, Deceased, Plaintiff, *v.*The Kinser Construction Company, Defendant.

(Supreme Court, Saratoga Special Term,

February, 1910.)

Depositions — Perpetuating testimony—-Right to take — Testimony taken before cause of action accrued.

Under the provisions of section 871 of the Code of Civil Procedure, which provides for taking the deposition of a person not a party, whose testimony is material and necessary to a person who expects to be a party to an action about to be brought, the wife of one who has sustained personal injuries may be granted an order for his examination, upon showing that such injuries will probably prove fatal to the end that his testimony may be perpetuated for use in an action expected to be brought by her for damages thereafter to arise through his expected death; and a motion by defendant, who was represented upon such examination, in such an action afterward brought by the wife, to vacate the'order for such examination and to suppress the deposition taken pursuant thereto, will be denied, it not being necessary that the wife at the time of her application for said order should have had. a present cause of action.

Depositions *de bene esse*taken in advance of the bringing of the action were permitted at common law, the sole test being the adequacy of the opportunity offered for an examination and, independently of the Code provisions, are now receivable in evidence in such action.

Motion to vacate an order.

Edgar T. Brackett (James A. Leary, of counsel), for plaintiff.

Rockwood, McKnight & McKelvey, for defendant.

Kellogg, H. T., J.

This is a motion by the defendant to vacate an order directing the examination of one Harry R. Vibbard and to suppress the deposition taken pursuant thereto.

*225On August 1, 1908, Harry Vibbard was seriously and, as the event proved, fatally injured, while operating a crane for the defendant, by the overturning of such crane. On August 27, 1908, an action was brought by Harry Vibbard against this defendant for damages on account of such injuries. Thereafter, and while Harry Vibbard was still living, his wife, Dora Vibbard, presented an application to a judge of this court for the examination of Harry Vibbard concerning his injuries, in order that his testimony might be perpetuated for use in an action expected to be brought by her against this defendant for damages thereafter to arise through the expected death of her husband. It appeared-from the affidavits presented on such application that the injuries to Harry Vibbard were probably fatal. All papers so presented were entitled *“*In the Matter of the application of Dora Vibbard, individually and as executrix of Harry B. Vibbard, to perpetuate the testimony of Harry B. Vibbard.” An order was thereupon granted, directing the appearance of Harry Vibbard before a referee for examination. This order and the papers upon which it was granted were served upon this defendant, a hearing before the referee at which this defendant was represented was thereafter had, and the examination of Harry Vibbard was taken as directed. Thereafter, on the thirteenth day of October, or about two weeks after such hearing, Harry Vibbard died. Hnder the circumstances, the question of the suppression of the deposition becomes one of serious importance, for without such deposition this plaintiff, unless she might be able to secure the admission of her husband’s testimony as a declaration made by him *in extremis,*would be prevented from presenting, on the trial hereof, evidence of the most vital character, without which her action would perhaps wholly fail.

If the deposition of Harry Vibbard in his own action against this defendant had been taken, such deposition could not have been used on the trial of this action. Murphy v. New York Central & Hudson River Railroad Co., 31 Hun, 358. The court in that case was construing section 881 of the Code of Civil Procedure and not section 830 thereof. Its attention was necessarily devoted to section 881, for that *226section deals with depositions taken in a former action, while section 830 deals with testimony given upon a former trial of an action or of an issue in a special proceeding. The suggestion made by counsel that section 830 of the Oode has been amended since the decision in the Murphy case and that, consequently, that decision is not applicable, is, therefore, not well taken. The decision in the Murphy case is to-day a distinct and positive authority which would forbid the use in this action of a deposition taken in the action by Harry Vibbard. The reason for that decision appears to be that an executrix suing for the death of her husband is in no sense a party claiming through her husband or in any way a successor of his in bringing her suit.

The deposition in question was sought to be taken under the authority of section 871 of the Code of Civil Procedure, which reads, in part: “ The deposition of a person not a party, whose testimony is material and necessary to a party to an action, * * * or to a person who expects to be a party to an action about to be brought in such a court, by a person other than the person to be examined, may also be taken as prescribed in this article.”

It is urged, and with substantial reasons, that under this section no deposition could be taken, because Dora Vibbard, individually, could never bring an action for her husband’s death, and as executrix she was not yet existent when the application was made; therefore she was not, individually or otherwise, a person who expected to be a party to an action about to be brought. If the language of this section is to be construed strictly, the reasoning is obviously sound. On the other hand, if it be held that neither under this section nor under the common-law practice could the deposition be used, then in no case and by no means could the testimony of an injured person about to die be preserved for use in favor of his next of kin, though every objection to such testimony had been obviated by the fullest cross-examination conducted'by the party to be sued. It does not appear to me that courts, by technical rules of evidence, intend the suppression of truth, for if this deposition is excluded that will appear to have been their sole aim.

*227The only objection at common law to depositions *de bene esse*was that they deprived a party of the right of cross-examination. “ The principle of the hearsay rule, as applied to the use of a deposition, is precisely the same as for testimony obtained in other tribunals, in the instances already reviewed. The mere speaking under oath is nothing; the essential condition is that the person against whom the sworn statement is offered should have had an opportunity to cross-examine the deponent. This is universally conceded as a common law principle.” Wigmore, § 1377. “A deposition is considered a partial representation of facts as to all persons who have no opportunity of bringing out the whole truth by cross examination.” Berkeley-Peerage Case, 4 Comp. 412. Wigmore further points out that the personality of the party presenting the deposition is immaterial, as there is no question of reciprocity, or *res adjudicate,*involved, but only the question whether upon the same subject matter the party' against whom it is now offered has already had adequate opportunity to sift its truth by cross examination. Wigmore, •§ 1388.

Depositions *de bene esse*taken in advance of the bringing of an action were permitted at the common law without statutory authorization. Packard v. Hill, 7 Cow. 489. “ The necessity of this mode of taking testimony may as often occur before as after any pleadings in the cause.” Mumford v. Church, 1 Johns. Ch. 150.

The sections of our Code applicable to the subject aré, in many respects, only declaratory of the common law. “A statute sometimes attempts to provide for the admission, under the present rule, of testimony at a former trial, as well as of ordinary depositions taken in the same or other proceedings, and of depositions taken *in perpetúan memoriam.*But it is worth noting that usually the effect of the common law principle would be even broader than the statute’s terms and. would suffice to admit, even where the case is not covered by the phraseology of the statute; *i. e.*the statute merely secures admissibility in certain instances and is not intended to forbid admission in other instances.” Wigmore, § 1388. In Bradley v. Mirick, 91 N. Y. 293, *228testimony given at an earlier trial was admitted on a subsequent trial, the court stating that, both under the common law and the statutory rule, the' evidence was admissible. This case appears to give recognition to the proposition that, in the matter of a deposition, taken as in this case, the common law may secure its admissibility, although it is not expressly sanctioned by statute.

As the sole test at common law was the adequacy of the opportunity previously afforded for cross-examination, I entertain no doubt that, independently of the Code section, this deposition would be receivable.

Nor do I think that the technical, narrow and strict construction claimed for section 881 of the Code should be given to it. This plaintiff was not, at the time she made her application, a person who, in her then capacity of an individual, had any proper expectation of being a party to an action. She did, however, expect soon to become executrix and, in that capacity, soon to bring suit. She was, therefore, in a sense, a person who expected to be a party to an action. It was not necessary that she should then have a present cause of action. Matter of Nolan, 70 Hun, 536; People v. Crowley, 25 App. Div. 175.

It was enough that she, with reason, anticipated being interested in an action at an early date, wherein the testimony of the person about to die would become essential. Any other view of section 881 would lead to the conclusion that the Legislature intended the exclusion of material evidence from an action, although every hearsay feature had been removed therefrom and no person could be unduly prejudiced thereby, solely and only from a motive to suppress the truth and to foster an injustice.

The motion to suppress is denied, with ten dollars costs.

Motion denied, with ten dollars costs.