Burr v. Sears , 18 Abb. N. Cas. 447 ( 1887 )

Lawrence, J.

Under subd. 5 of section 872 of the Code of Civil Procedure, the plaintiff is entitled, if an action is pending, to examine a witness who is about to depart from the State ; and under the same subdivision, if other special circumstances exist which render it proper that the witness should be examined, such examination may also be had.

In this case the criticism is made that the affidavit upon which the order was granted, so far as it relates to the intended departure of the witness, is made on information and belief; but it will be found upon examining the affidavit that the deponent states that such belief arises from investigations made by him, and from statements made to him by the defendant Sears. I think a prima, facie case under the circumstances disclosed was made out for the granting of the order, and shall therefore refuse to vacate it, with leave, however, to move on affidavits.

The ease of the Matter of Bryan (3 Alb. N. C. 289), I do nob regard as in point, for the reason that the application there was not made under the 5 th subdivision of section 872 of the Code.