Batterson v. Sanford , 13 Jones & S. 127 ( 1879 )

By the Court.—Sedgwick, J.

I am of opinion that the learned judge held correctly, in the circumstances of this case, that although an objection to giving evidence that might tend to criminate the witness should be heard and passed upon in the examination itself, it was not sufficient ground for setting aside the order.

But it seems to me that the affidavit for plaintiff did not show that the defendant was to be examined as a witness before trial. They disclosed no purpose of using his testimony upon the trial, and this, I think, should clearly appear in every like case.

The affidavits say that the plaintiff cannot safely proceed to trial, cannot properly prepare for trial without defendant’s deposition, that the testimony is material and necessary to the plaintiff to enable him to prepare for the trial of, and to safely try this action ; but they nowhere show an intention to use the deposition on the trial. The intention not to use it, then, is implied.

For this reason, the order appealed from should be reversed, with $10 costs, and disbursements to be taxed.

Van Vorst, J., concurred.