
    VAUGHN et al. v. SCHENKER et al.
    (Supreme Court, Appellate Division, First Department.
    June 3, 1910.)
    1. Depositions (§ 17)—Persons Whose Deposition Mat be Taken.
    The showing for taking the deposition of a person, that he is a nonresident, sick, and about to return to his home, being sufficient under Code Civ. Proc. § 872, subd. 5, it is no ground for refusing to allow it to be taken that he has previously been produced as a witness in open court in litigation between the parties.
    [Ed. Note.—For other cases, see Depositions, Cent. Dig. §§ 11, 12Dec. Dig. § 17.*]
    2. Depositions (§ 17*)—Parties—Agent.
    The exception to Code Civ. Proc. § 872, subd. 5, authorizing the taking of a person’s deposition under certain circumstances, that it does not apply where the person, is a party, does not extend to an agent of a party.
    [Ed. Note.—For other cases, see Depositions, Cent. Dig. § 12; Dec. Dig. § 17.*]
    Appeal from Special Term, New York County.
    Action by Isaac N. Vaughn and another against Israel W. Schenker and others. From an order granting a motion to vacate an ex parte order, plaintiffs appeal.
    Reversed, and motion denied.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, CLARKE, and DOWLING, JJ.
    John S. Wise, Jr.,for appellants.
    Edward W. S. Johnston, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   DOWLING, J.

^ This is an appeal from an order vacating a prior order directing that the deposition of Robert T. Cole, a witness on behalf of the plaintiffs, be taken on a day therein named. The affidavits upon which the original order was made complied in all respects with the requirements of section 872, Code Civ. Proc. It also appeared, from the affidavits of plaintiffs’ attorney and of the witness himself, that said Robert T. Cole had been the agent of the plaintiffs to whom the representations alleged in the complaint had been made by defendants, and by whom the sale of merchandise to defendants had been effected; that he was a nonresident of the state of New York and was only temporarily therein; that he was suffering from heart trouble, and was about to leave the state to return to his home in Virginia; and that there was reasonable ground to believe that because of his illness he would be unable to return to the state to attend the trial of this action. For what reason the original order was vacated does not appear, and the only suggestion thereof is to be found in the contention of defendants that because Cole had previously been produced as a witness in open- court in litigation between the parties hereto, and was an agent and employé of the plaintiffs, that his deposition should not be taken. But the facts set forth as to Cole’s nonresidence, illness, and intention to return to his home are not controverted," and the exception in subdivision 5, § 872, applies only to a party to an action, and not to a person in his employ.

The order for the examination of Cole was in conformity with the provisions of section 873 in all respects, and the order vacating it must therefore be reversed, with $10 costs and disbursements, the application to set the original order aside be denied, with $10 costs, and the examination of the witness be directed to proceed on a day to be fixed. All concur.  