
    MARTIN v. HICKS.
    
      Supreme Court, First Department; General Term,
    
      December, 1875.
    Appeal.—Order resting in Discretion.—Perpetuating Testimony.—Form of Affidavit.
    Upon appeal from an order by which a motion was denied on the ground of want of power of one judge to modify the order of another judge, the general term may look into the •merits and sustain the order, if a proper one, instead of sending it back to be heard again. *
    The perpetuation of testimony, in a case within 2 S. 3. 398, 399, is a matter of right.
    It is not essential that the affidavit contains an affirmative allegation that the application is made in good faith.
    Form of an affidavit held sufficient to entitle the applicant to the order. 
    
    Appeal from an order.
    ‘Robert Martin, as executor of Daniel Marley, sued Catherine E. N. Hicks (Countess Heinructh) in this court on a bond. The defendant brought a cross suit, seeking to set aside the bond, and for other relief, and relied in part on an informal memorandum, made by the deceased in presence of a servant, to prove that the bond was never intended to be enforced, but was delivered on a promise to surrender it cancelled forthwith..
    The obligor in the bond (defendant in the first, and plaintiff in the second action) obtained an order for the perpetuation of the servant’s testimony, which the adverse party moved, before another judge, to vacate. The latter denied the motion, and the executor appealed.
    The affidavit of the party applicant, was entitled in both actions, and its allegations were as follows :
    I. That she is a party to each of the above entitled actions—to wit, party defendant in the action first above entitled, and party plaintiff in the action last above entitled—which said actions are now actually pending in this court, in the county of New York.
    
    II. That the action first above entitled is brought by the plaintiff therein against this deponent to recover $14,700 and interest on a bond for that sum alleged to have been made and delivered to the above-named Daniel Marley, in his lifetime, to wit, on April 4, 1871, by this deponent, defendant in said action. That the defense to the said action is that the said bond was obtained and procured by the said Marley from this deponent, defendant therein, by fraud, covin and misrepresentation in manner as will appear by reference to the sworn answer of this deponent in the said action, a true copy whereof is hereto annexed, marked “A,” and the matters and things mentioned and set forth in which said answer and copy are true to the knowledge of this deponent, and made a part of this affidavit.
    
    III. That the action last above entitled is brought by deponent, as plaintiff therein, against the plaintiff in the first action as defendant, to have the bond on which deponent is sued in the said first above entitled action, declared void for having been obtained by fraud set forth in the said answer before mentioned, and ordered to be delivered up to be cancelled, and for an injunction restraining the said plaintiff in said first named action from proceeding with the same, as well as for the delivery up and cancellation of other instruments, likewise and at the same time, fraudulently obtained by the said Marley from this deponent, and to compel the said defendant in said last named action, (plaintiff in the first as aforesaid) to account with this deponent in a long and difficult matter of account and dealings which existed, and were carried on for many years, between this deponent and the aforesaid Daniel Marley, and pay her whatever may be found due to her thereon, and to pay her damages sustained by her by reason of certain other unlawful acts of the said Marley in the premises; in which last named action, the just and lawful claims of this defendant exceed, according to her best estimate and belief, the sum of $141,000.
    That both said actions áre between the same parties as aforesaid, and have arisen out of the same subject-matter and transactions;  to wit, long and difficult dealings and accounts between this deponent and the said Marley, extending over a period of many years, and the circumstances attending a pretended settlement of the same, made during the lifetime of the said Marley.
    That the agreement of the said Daniel Marley, bearing date, March 30, 1871, mentioned and set forth in the answer in the first named action, and the copy thereof, hereto annexed, is likewise mentioned, and fully set forth in the complaint in the last above entitled action, and is the basis upon which the defenses and claims of this deponent, in each and both of the said above entitled actions rest. That if this deponent is unable to substantiate and prove the making of said agreement, and the circumstances attendant thereupon, she will fail in her said defenses and claims in the said actions, as she is advised by John A. Wright, Esq., one of her counsel in the said actions, after fully and fairly stating the cases in the said actions to her said counsel, and verily believes.
    And this deponent further says that she is informed by her attorneys in the said actions, and verily believes that the attorneys of the opposing party to her in the said actions, or one of said attorneys have, or has declared that they believe, and will endeavor to prove, that the said agreement of the said Daniel Marley, bearing date March 30, 1871, is, in whole or in part, a forgery.
    
    And the deponent says, of her own knowledge, that Ann Keefe, who is mentioned in the said agreement of the said Daniel Marley with this plaintiff, bearing date the 30th March, 1871, resides within the State of New York, to wit, in the city and county of New York. That the testimony of the said Ann Keefe is material and necessary to the prosecution of the last and the defense of the first above entitled action, as deponent is informed by her counsel after fully and fairly stating to him what she expects to prove by the said witness and verily believes.
    That the said Ann Keefe was an eye witness, and is the sole and only witness now living except this deponent to the making and delivery of the said agreement of said Daniel Marley bearing date the 30th March, 1871, before referred, and to various interviews and transactions between this deponent and the said Marley, before, at and after the making and delivery of the said agreement, which are of great importance and essentiality to this deponent in each and both of the actions above entitled, and in regard to which this deponent is entirely debarred by law from testifying, as she is advised and verily believes. That the said Ann Keefe is a servant and person in an humble condition of life, who is likely frequently to change her place of residence,  That the facts about which- the said Ann Keefe is to be examined can not be immediately investigated in a court, whereby and by reason of all the premises deponent is in great danger of losing her testimony unless the same be taken and perpetuated persuant to statute by order of this court or a justice thereof.
    
      Joseph Larocque, for the appellant.
    
      John A. Wright, for the respondent.
    
      
       Compare, as to reversal of order founded on supposed want of power, Tilton v. Beecher, 59 N. Y. 176; Hanover Fire Ins. Co. v. Tomlinson, 58 Id. 215.
      In what cases an order on a motion for a deposition is appealable, see Wallace v. Am. Linen Thread Co., 2 Sup’m Ct. (T. & C.) 574; Treadwell v. Pomeroy, Id. 470; Anon., 59 N. Y. 313; Rogers v. Durant, 56 Id. 669.
    
    
      
       See preceding and following cases.
      *This overrules Cheever v. Saratoga Co. Bank, 47 How. Pr. 376, where it was held that the application was not a matter of right, and the absence of doubt as to the witness’s'ability to attend raised a presumption of bad faith, and Paton v. Westervelt, 5 Id. 399, to similar effect.
      Whether the statute is applicable to the examination of a party to the action, compare the proceeding case, Glenney v. Stedwell, and Lang v. Brown, 6 Hun, 256, with Keeler v. Dusenbury, 1 Duer, 660.
      As to compelling discovery of books and papers at the same time, compare next case but one, Smith v. MacDonald, and Keeler v. Dusenbury (above).
      
    
    
      
       As to the restrictions on the place of making such motions in suits pending, see Erwin v. Voorhees, 36 Barb. 137.
      In an action in the supreme court, any judge having the powers of a justice of the supreme court out of term may make the order in respect to a witness residing in his county, or make an order returnable before such an officer in the county where the witness resides. Lang n. Brown, 6 Hun, 256.
    
    
      
       It is generally useful, if not necessary, to state whether the cause is at issue, and if so, what the issues are.
    
    
      
       In such a case, only one motion is proper for both actions in the same court. See Phillips v. Wheeler, 16 Abb. Pr. N. S. 242, and note; Hornfager v. Hornfager, 6 How. Pr. 13.
    
    
      
       The materiality of the testimony and its necessity must be shown by the affidavit.
    
    
      
       See Code of Pro. § 399.
    
    
      
       It is not essential that the affidavit state that the witness would probably be unable to attend on the trial. The act is not confined to any particular class of witnesses; it embraces all those in the strength and vigor of manhood as well as those aged and infirm. Jackson v. Perkins, 2 Wend. 316.
    
   Davis, P. J.

The order to perpetuate the testimony of a witness was made upon ah application by affidavit which complied with all the requirements of the statute. The motion to vacate the order was not made upon any alleged irregularity in granting it, but on the ground that it was improvidently granted,. and on an affidavit and order made in one of the cases at circuit denying motion to postpone the trial of the action, and on the pleadings in the said actions respectively. It is asserted by the counsel for the appellant and substantially so stated by the managing clerk in the office of the appellant’s attorneys, that the appellant’s motion was denied at special term on the ground that the "court “ had no power to vacate an order made by another judge, the making of which rested in the discretion of such judge.” It does not, however, appear in the order appealed from, that the decision was placed upon such grounds ; but if that were the case, we should be at liberty to look into the merits of the motion on this appeal without sending it back for consideration on its merits by the court below.

The perpetuation of the testimony of any witness within this State by any party to a suit is a matter of right in cases when the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith. In these cases it does appear by the papers now before the court, that the person whose testimony is sought to be perpetuated is the only living witness who can be called as such, of the execution of an instrunent which, if genuine, is of the gravest importance to the party averring its execution. The paper presented to the judge granting the order contained nothing tending to show bad faith on the part of the applicant, and, therefore, nothing upon which a denial of the order would have been proper. The respondent had the right, therefore, to guard herself against the contingency of the death or other disability named in the statute of that witness. To deny her this must be upon the assumption by the court, that the instrument sought to be proven and used, is a forgery, and that would be trying in advance an issue which should only be tried by a court and jury. It is asserted, and the papers certainly tend to show, that one object in making the application to take the testimony, of the witness in this form, was to avoid her personal production in court; but we must assume that that object •will be easily defeated by compelling a prompt and speedy trial of the issues.

We see no reason for interfering with the order of the court below, and it must be affirmed with $10 costs besides disbursements.

Beaut and Daniels, JJ., concurred.

Ordered accordingly.  