
    George Clark, Plaintiff, v. Frank Phillips, Defendant. Jane Mahana, Plaintiff, v. Frank Phillips, Defendant.
    (Supreme Court, Erie Special Term,
    November, 1909.)
    Discovery and inspection — Examination of party before trial'—Procedure— Vacation of order. -
    Where orders are made on motion of the plaintiffs, by defendant’s consent, in two actions against the same defendant upon the calendar of the court for trial, to take the testimony of the plaintiff in one of the actions for use on the trial in both actions at a future time, and it is agreed at the same time that the plaintiffs shall submit to a physical examination, which they do, the order for the examination of one of the plaintiffs, after he has been examined and cross-examined and after he has died, should not be vacated for defects in the papers as to which no objection is raised until after his death.
    Motion by defendant to vacate order of May 3, 1909, providing for the taking of the testimony of George Clark for use on the trials of the above entitled actions.
    Hopkins & Brim, for motion.
    Oliver D. Burden and George C. Lewis, opposed.
   Brown, J.

The testimony of George Clark was taken under the provisions of the order of May 3, 1909, on the 19th day of May, 1909, and filed in Niagara county clerk’s office June 12, 1909. George Clark died on the 19th day of August, 1909. On the 11th day of September, 1909, the attorneys for the defendant served a notice of motion, returnable September 20, 1909, for an order vacating the order of May 3, 1909, and setting aside the deposition of the deceased witness upon the ground that the affidavit used to obtain the order was defective; that there was no authority for granting the order, and that statutory requirements relative to the service of copies of the affidavit and order were not complied with. Upon the argument of this motion, on the 20th day of September, 1909, it appeared that these cases were upon the general calendar of the April term of this court for Niagara county held at Lockport; that plaintiffs were ready for trial and anxious to try the same at that term; that defendants made application for the postponement of such trials, owing to the inability of the defendants to be present at that term of court; and, it also being claimed that the attorneys for the defendant had consented to the granting of the order of May 3, 1909, it was referred to S. W. Dempsey, Esq., to ascertain and report whether the order of May 3, 1909, was made as a condition of granting defendant’s application to postpone and whether defendant’s attorneys consented that the order be made in its form and that the testimony of the witness Clark should be taken under the said order for use at the trials when had. Such motion to vacate was held until the coming in of such report. The referee has rendered his report, wherein he finds that such order was not made as a condition of the postponement of the trials, but was made with the consent of the attorneys for the defendant that the testimony of the witness Clark should be taken under it for use on the trials.

While it does appear that no formal decision was ever made on the application of the defendant to postpone the trials, and no direct testimony appears to the effect that the order was made as a condition of putting the cases over the term, and while the referee is probably correct in his findings, yet the fact that the cases were not tried nor moved for trial after the making of the order and that the attorneys for both parties took steps to take the testimony, the attorney for the defendant seeking to have included in the order a condition for the physical examination of the plaintiff Mahana, is quite satisfying to the mind that it was understood by all parties up to the adjournment of court that, instead of trying the cases at that term, the testimony of plaintiff Clark was to be taken for use on the trials of both of the above entitled actions to be had at some future time.

It quite satisfactorily appears that, on May 3, 1909, Mr. Justice Lambert presiding at the term of court then in session called one of the attorneys for the defendant to the bench and inquired of him what there was about this order to take the testimony; that the attorney for the defendant replied that plaintiffs’ attorneys had stipulated that defendant might have a physical examination of the plaintiff Mahana; that, if they obtained the order, he could see no reason why a physical examination could not be had at the same time of taking the testimony of the plaintiff Clark. There was talk as to who the referee should be, and defendant’s attorney stated he had no objection to the referee that was finally named in the order. While it is true that the affidavit used to obtain the order and the order itself are subject to many of the criticisms made by counsel, yet it is very easy to reach the conclusion, by implication at least, that the defendant’s attorneys did agree to take the' testimony of plaintiff Clark in the manner it was taken for use on the trials when had. Defendant did have the physical examination he desired; he has had the benefit of that provision of his oral request, acted upon it and, although the order does not contain anything in referefice thereto, he cannot complain; the defendant was represented by his attorney at the time of the taking of the testimony of the plaintiff Clark; he had the benefit of a thorough and complete cross-examination; has taken no steps to suppress the deposition after it was taken and before the death of the witness who then was in a very feeble physical condition and was expected to live but a very short time thereafter; and now, having made this motion after the death of the witness, it must be held, under all the circumstances, that the motion must be denied.

Proposed order to be submitted before entering.

Motion denied.  