John Clark, Respondent, v. The Manhattan Railway Company, Appellant

John Clark, Respondent, v. The Manhattan Railway Company, Appellant. (Argued March 16, 1886; decided March 26, 1886.) This was an appeal from an order of General Term affirming an order of Special Term, granting a motion to suppress a deposition taken de bene esse. The motion to suppress was based on the ground that the deposition was read over to and subscribed by the witness in the absence of and without notice to the plaintiff’s attorney. The following is the mem. of opinion : “ It is not claimed that any harm or prejudice came to the plaintiff because the deposition was read to and subscribed by the witness in the absence of his counsel. We have carefully considered all the facts appearing in the affidavits and are of opinion that plaintiff’s counsel must be held to have waived his right to be present at or to have notice of the reading of the deposition to the witness on the Monday after it was taken, and that, therefore, the court erred in suppressing it. “ The orders of the General and Special Terms should be reversed and the motion denied, with costs.” Edward S. Sapallo and Howard Townsend for appellant. Ghauneey S. Truax for respondent. [MAJORITY — Per Curiam mem.] Per Curiam mem. for reversal of orders of General and Special Terms and for denial of motion. All concur. Ordered accordingly.