Barnsbee v. Barnsbee , 45 N.Y.S.2d 173 ( 1943 )

Garvin, J.

This is an action for an absolute divorce brought by plaintiff husband against his wife. The alleged corespondent is an officer in the British Navy, who is not available as a witness at the trial. The probability of his later availability is remote. Defendant now applies for an order placing the case on the Military Suspense Calendar (Rules of Appellate Division, Second Department, Special Rule Two, adopted May 26, 1941) upon the ground that a material witness, this officer in question, cannot be subpeenaed for the trial. No authority has been cited for the relief demanded. The pertinent rules apply to persons in the United States armed forces only, except that the Soldiers’ and Sailors’ Civil Relief Act has been recently amended so as to include persons who are serving with the forces of any nation with which the United States may be allied in the prosecution of any war in which the United States engages while the Act remains in force, and who immediately prior to such service were citizens of the United States. (Soldiers ’ and Sailors’ Civil Relief Act Amendments of 1942, § 4; U. S. Code, tit. 50, Appendix, § 514.) It is doubtless true that defendant may be greatly prejudiced by being forced to go to trial without the testimony of this witness. For that reason, while the application cannot be granted, the motion will be denied without prejudice to any application that the defendant may be advised to make in order to obtain the testimony of the “ material witness ” by deposition or commission.