SEIDEN v. CONCORDIA FIRE INS. CO. OF MILWAUKEE

SEIDEN v. CONCORDIA FIRE INS. CO. OF MILWAUKEE. District Court, S. D. New York. April 27, 1931. Denman, Bevier & Scotti, of New York City, for the motion. Davidson & Davidson, of New York City (Louis B. Davidson, of New York City, of counsel), opposed. [MAJORITY — WOOLSEY, District Judge.] WOOLSEY, District Judge. This motion is denied in all respects. I. The question here involves the .suppression of the deposition, taken under title 28, U. S. Code, § 639 (28 USCA § 639) formerly Rev. Stat. § 863, of a witness who is a state employee engaged in work as inspector of motor vehicles for New York State, with official headquarters at Albany, and temporary residence also in that city. II. The fact that the legal residence of witness is in New York City is immaterial. The question is one of a witness’ place of temporary sojourn, not of his domicile. Cf. Frost v. Barber (C. C.) 173 F. 848; Bagdan Milk Co. v. Dairymen’s League Co-operative Association (D. C.) 44 F.(2d) 855. This is obvious because the civil subpcena does not run beyond 100 miles from the place of the trial. U. S. v. Southern Pacific Co. (D. C.) 230 F. 270, 272; Russell v. Ashley, 21 Fed. Cas. 33, 34, No. 12150, and note. If witness is available at time of trial, of course, the deposition cannot be used. Objecting party must show availability. Russell v. Ashley, 21 Fed. Cas. 33, 34, No. 12150; Merrill v. Dawson, 17 Fed. Cas. 86, 97, No. 9469; Patapsco Ins. Co. v. Southgate, 5 Pet. 607, 617, 8 L. Ed. 243.