
    John A. Johnson, Respondent, v. New Home Sewing Machine Company, Appellant, Impleaded with Henry D. Carey.
    
      Examination of a witness before trial—what is insufficient proof of lvis materiality and of Ms sickness.
    
    An order for the examination before trial of a witness, made upon the ground that he is “so sick ór infirm as to afford reasonable ground to believe that he will not be able to attend the trial,” will be vacated where the only allegation as to the materiality of the witness is contained in the affidavit of the moving party who states what he expects to prove by the testimony of the witness, but does not disclose any fact or circumstance tending to show that he has any reasonable ground for his expectation, and also where the moving paper simply shows the serious illness of the witness many months prior to the making of-the motion and fails to show its continuance.
    Appeal by the defendant, the New Home Sewing Machine Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of April, 1901, denying the defendant’s motion to vacate an order theretofore granted in the action for the examination before trial of one George W. Albright,- as a witness for the plaintiff.
    
      Oha/rles E. Mahony, for the appellant.
    
      Edwin E. Leavitt, for the respondent.
   Laughlin, J.:

The order was granted under sections 871, subdivision 5 of 872, and 873 of the Code of Civil Procedure, upon the theory that the witness was “ so sielc or infirm as to afford reasonable ground to' believe that he will not be able to attend the trial.”

The order must be reversed upon two grounds: (1) It is not sufficiently shown that the witness is material, and (2) it is not sufficiently shown that he is so sick or infirm as to afford reasonable ground for believing that he will not be'able to attend the trial.

First. The only moving affidavit relating to the materiality of the witness is that of' the plaintiff who merely states what he “ expects ” to prove by the testimony of the witness whose examination is sought to be had. Plaintiff does not' state that he has had any conversation with Albright or disclose any fact or circumstance tending to show that he has any reasonable ground for his expectation with reference to the testimony that may be given by Albright. (Tilton v. United States Life Insurance Company, 1 Abb. N. C. 348 ; Hale v. Rogers, 22 Hun, 19; Chapin v. Thompson, 16 id. 53; Thurfjell v. Witherbee, 70 id. 401, 402; Rheinstrom v. Weir, 5 App. Div. 109, 112; White v. Hall, 8 id. 618; Lyman v. Gramercy Club, 28 id. 30, 34.)

Second. The order was granted on the 9th day of March, 1901, and the moving affidavits were verified on the preceding day. The affidavit with reference to the illness of the witness was made by plaintiff’s attorney. It is to the effect that on the 19th day of October, 1900, Albright informed affiant “that since the preceding spring he has been an invalid and dangerously ill and expected to die at any time; ” that on the 27th day of November, 1900, affiant was informed by Albright’s attorney “ that said Albright was then seriously ill, having undergone an operation for appendicitis and was not expected to live,” and that on the 29th day of December, 1900, Albright filed an affidavit in a proceeding pending in the Supreme Court,, stating in substance that he was attacked with appendicitis on the 1st of April, 1899; that on the fifteenth day of the same month, when he was supposed to be in a dying condition, he underwent an operation for appendicitis and was unable to leave his apartment until the last of June when he went to Europe-for his health, and was “ unable by reason of said sickness and malarial poisoning to attend to his professional work ” until about the 15th of December, 1900. -

Defendant read in opposition to the motion an affidavit of Albright showing that he was and had been since the loth day of December, 1900, perfectly well and attending to his professional business.

The affidavit, even if it tended to show the serious illness of the witness many months prior to the making of the motion, but failed to show any fact or circumstance indicating the continuance of the illness or inability, would be clearly insufficient to comply with the reasonable requirements of these provisions of the Code; and, manifestly, when it appeared that the witness had regained his health, the order granted for his examination should have been vacated.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Patterson, O’Brien and McLaughlin, JJ., concurred; Hatch, J., concurred on second ground.

Order reversed, with ten dollars' costs and . disbursements, and motion granted, with ten dollars costs.  