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a corporation organized under the laws of New York, and having its principal office for the regular transaction of business at
street, in the Borough of Manhattan, County of New York. The S. Coal Co. is a corporation organized under the laws of the State of New York, and having its principal office for the regular transaction of business at No. Broadway, in said Borough and County.
Second. A controversy has arisen between the parties above named, growing out of a contract entered into between said parties, on or about the
19 whereby said Coal Company contracted to furnish coal to said Trading Company for the use of steamers operated by said Trading Company, in particular the steamers “Sanda” and “Skuld.” The said controversy grows out of the failure of the said Coal Company to supply a reasonably good quality of coal for the use of said steamers, and to furnish the same with reasonable promptness, whereby damage was inflicted upon said Trading Company.
Third. No action arising out of said controversy has yet been commenced, but ar action is about to be brought in a court of record of this State by said Trading Company, against the Coal Company, to recover damages for the breach of the said contract.
Fourth. For the prosecution of said action, it will be necessary to obtain the testimony of divers members of the crew of the steamship“ Skuld,” which steamship is now lying in the port of New York. These witnesses are H. H., the captain of said steamship; her mate, L. L.; her second engineer, N. B.; one of her firemen, and John Doe and Richard Roe, members of her crew. Said persons are necessary and material witnesses for the prosecution of the said expected action by reason of their familiarity with the quality of coal supplied to said steamship, and of their knowledge of the delay in supplying the said coal, acquired by reason of their connection with said steamship.
Fifth. The said H. H. and the other witnesses before mentioned, are about to sail on the steamship “Skuld” from the port of New York for Taku Bar in the Empire of China, and will
19. Said steamship and the above named persons, members of her crew, as aforesaid, will not return to this port, to the best of my knowledge and belief, and their next destination after leaving Taku Bar is wholly undetermined.
Said persons are all residents of the Kingdom of Norway.
Sixth. I have fully and fairly stated the facts of the above mentioned controversy, and of the said contracts, to my counsel, C. B. S., who resides at
street in the City of New York, and am advised by him that the said Trading Company has a good and meritorious cause of action arising out of said controversy. That the testimony of the above named persons will be material and necessary at the trial in the prosecution of any such action expected to be brought, and that without such testimony the Trading Company cannot safely proceed to the trial thereof, and I verily believe the same. It is intended in good faith to use said examination on the trial of said proposed action.
Seventh. No previous application for the perpetuation of said testimony has been made. [Jurat.]
[Signature.] FORM No. 296. Notice of motion to vacate order for examination and to suppress depositions
already taken. [Title as in previous Forms.]
Please take notice, That the S. Coal Company, upon the annexed affidavits of E. S. G. and C. H. T., duly verified the day of
19 will move this court at a Special Term,"1 [Part 1] thereof, to be held in the [County Court House, in the Borough of Manhattan, County of New York,] on the day of
19, at 10:30 o'clock in the forenoon of the said day, or as soon thereafter as counsel may be heard, for an order vacating the order granted herein on
19 and suppressing the depositions taken pursuant thereto, and for such other and further relief as may then to the court seem just.
FORM No. 297. Order vacating order for examination and suppressing depositions taken
The S. Coal Company, having moved herein for an order vacating an order made herein by Mr. Justice M., on the day of , 19, directing that (naming persons), be examined as witnesses on behalf of the T. Trading Company in an action expected to be brought by said T. Trading Company against said S. Coal Company, and that the depositions taken under said
71 The motion to vacate the judge's $ 772; Matter of Schlotterer, 105 App. order is properly noticed for the Div. 115, 93 N. Y. Supp. 895. Special Term. N. Y, Code Civ. Pro.,
19 be suppressed; and said motion coming on to be heard before me; [continue recitals as in usual form of order] it is
ORDERED, that the order made herein by Hon. C. F. M., a justice of this court, on the
19 directing that [specified persons] be examined as witnesses in an action expected to be brought by the T. Trading Company against the S. Coal Company, be and the same hereby is, in all respects, vacated and set aside, with ten dollars costs to the S. Coal Company; and it is further ORDERED, that the depositions taken under said order of
19 be and the same hereby are suppressed in their entirety.
FORM No. 298.
Petition upon application to perpetuate testimony regarding real property.72
SUPREME COURT. COUNTY OF
In the Matter of the Application
of A. B. to perpetuate the testimony of M. N. and O. P.
To the Supreme Court of the State of New York:
The petition of A. B., above named, respectfully shows:
in the County of
II. That your petitioner desires testimony taken and perpetuated in relation to the following real property [insert description, as in a deed] ; that your petitioner is the owner of an estate [in fee] therein, which he holds as (purchaser).
III. That said property at the date hereof is, and for over one year next preceding, has been in (your petitioner's possession as sole owner).
72 Under N. Y. Code Civ. Pro., $$ 1688a-1688i (added 1903). The deposition is taken de bene esse, i. e., admissible in an action only after proof of death, inability to attend, or
absence preventing his being subpænaed or his deposition taken by commission ($ 1688a).
See paragraph 3, p. 535, supra.
IV. The names and residences of the persons to be examined are: [state them]
V. The names and residences of the persons having interests which may be adversely affected by the testimony sought to be taken, so far as such names and residences are within the knowledge of your petitioner, are as follows: [state them carefully and fully. ]"
VI. [IIere set out the facts which render it necessary for petitioner that the testimony be taken.]
WHEREFORE, your petitioner prays that the testimony of said M. N. and O. P. be taken and perpetuated, as by statute provided, and for such other and further relief as may be just. [Date]
[Signature.] [Verification.] [Present to a justice, and obtain order as in Form 299.]
FORM No. 299.
and on motion of C. D., attorney for petitioner,
Ordered, that this application be and the same is hereby adjourned to [date] and before the Special Term of this court to be held on that day at the City and County Hall in the City of Buffalo, County of Erie,) at the opening of court on said day, or as soon thereafter as counsel can be heard; and it is further
Ordered, that (ten] days' notice of the time and place of the hearing of this application be given to [name all persons adversely interested] by serving upon them a copy of this order and annexed petition.
[If personal service cannot be made on some, continue with direction for notice by mail, or by publication.] [Date.]
[Signature and official title.]
73 The depositions are admissible only against such persons as are notified, and those claiming under them. Code. & 1688i.
74 While the statute contemplates notice to some one, and therefore presumably those adversely interested, before the order for the taking of the
depositions is made ($ 1688f), the
FORM No. 300.
Order for the taking of the depositions.75
At a Special Term [etc., as in a court
The above named A. B., having presented his petition to this court, praying that the testimony of the above named M. N. and 0. P. be taken and perpetuated as by statute provided, and said application now coming regularly on to be heard ; Now, on reading and filing the said petition, dated and verified day of
19 and the order granted herein by Mr. Justice J. K., dated
and on proof of the due service of said order and petition upon [name all persons served] as shown by the annexed affidavit of Y. Z., and after hearing C. D., of counsel for said petitioner, and [E. F., of counsel for
or, no one] opposing, and it appearing to the satisfaction of the court that the case comes within the provisions of chapter 14, title 1, article 10 of the Code of Civil Procedure, it is
ORDERED, That the depositions of M. N. and O. P., be taken before J. A., Esq., who is hereby appointed referee for such purpose, at the office of said referee, at No.
street, in the city of
19 at o'clock in the noon thereof; that such depositions shall be limited to testimony concerning the matters and things referred to in the said petition of A. B. herein, or relating thereto or to the real property therein described; and it is further
Ordered, That days' notice of the time and place at which the testimony will be taken before said referee be personally served upon the following persons: [name them carefully; add other provisions for substituted service if personal service cannot be obtained]76
75 A court order ($ 1688f).
76 It is only against these persons served with notice, or those claiming
under them, that the depositions may be hereafter offered (8 1688i).