Sharp v. Lockwood

Waite, J. On the trial of this cause, the plaintiff offered in evidence the deposition of George Sharp, which the court be [158] low rejected, upon the ground that reasonable notice had not _been given of the time of taking it. The statute -of this state, authorizes the taking of depositions, in certain cases, “ provided reasonable notice shall be given to the adverse party, or his known agent or attorney, if either of them live within twenty miles of the place of caption, or left at his usual place of abode, to be present at the time of taking such deposition.” Stat. 47. tit. 2. c. 1. s. 44. From the motion, it appears, that the deposition was taken in the city of New-York, and that the only person notified was John C. Morrison, the agent of the defendant. About half past 2 o’clock in the afternoon, he was notified, that the witness would be examined that afternoon, at half past 3 o’clock, at a place about half a mile from Morrison's store, where he was, when the notice was given. Morrison himself did not attend ; but bis son was present, and objected to the taking, for want of reasonable notice, and informed the magistrate, that he himself knew nothing of the matter, but was sent to procure a postponement, as sufficient time had not been allowed to procure counsel. It does not appear that there was any postponement. The only reasons assigned for the haste in taking the deposition, were, that the plaintiff’s counsel intended to leave the city the next day, and that the witness was sick and in a declining state of health ; but there was no reason to suppose that his testimony might not have been procured on a subsequent day. The question for this court, is, whether upon these facts, that reasonable notice was given, which the statute requires ; and we are satisfied that it was not. The legislature have not thought proper to prescribe what length of time the notice shall be given before the taking of the deposition, as they have done in relation to the service of civil process; but have simply directed, that “ reasonable notice” shall be given. As to the length of time which shall constitute such notice, no definite rule can be given. Much must depend upon the circumstances of each particular case. The legislature undoubtedly intended, that such notice should be given, as would afford a fair opportunity to cross-examine the witness. One hour’s notice, given as it was, to an agent, during the business hours of the city, to make the necessary arrangements for such an examination, in our opinion, was man [159] ifestly insufficient. Besides, the agent requested a postponement, to enable him to procure counsel. It seems, the plain-, tiff’s counsel was in attendance; and the request on the part of the defendant, was not unreasonable. A suitable time ought to have been allowed for the purpose for which it was asked. It has been urged, that the question whether reasonable notice was given, is a question of fact, which has been decided in the court below, and cannot be reviewed here. Had the motion merely stated, that the deposition was rejected because reasonable notice had not been given, without any report of the evidence, it is obvious, there would be nothing for us to review. But the motion presents the facts and circumstances attending the notice; and the question is, whether a correct inference was drawn. The court below was under no obligation to adopt this course. But at the same time, we see no impropriety in adopting if, in cases of doubt or difficulty. It is in conformity with the practice in other cases. Thus, where a deed has been lost, and secondary evidence of the contents is offered ; the court cannot admit the secondary evidence, without finding the fact of the loss. The question respecting the loss is often reviewed in the higher court. Renner v. Bank of Columbia, 9 Wheat. 481. Winn & al. v. Patterson, 9 Peters, 664. The King v. The Inhabitants of East-Farleigh, 6 Dowl. & Ryl. 147. (16 Serg. & Lowb. 258.) Freeman v. Arkell, 2 Barn. & Cres. 494. (9 Serg. & Lowb. 259.) Hathaway v. Spooner, 9 Pick. 23. It is desirable that the rules respecting the admission and rejection of testimony, should, as far as practicable, receive an uniform construction. This object is best attained, by reserving questions of doubt and difficulty, for the consideration of the higher court. No reasonable objection can be made to this course, upon the ground that the question involves a question of fact; as where the question is, whether reasonable notice has been given, or due diligence used in searching for a lost deed. The court can state the evidence respecting the notice, or the search, and reserve the question respecting the sufficiency of that evidence, for the advice of the higher court. Whether the case under consideration, was a proper one to be reserved for this court, was a matter within the discretion of the judge on the circuit. [160] We are therefore satisfied, that the decision of the superior court, in rejecting the deposition, was right; and consequently, a new trial must be denied. In this opinion the other Judges concurred. New trial not to be granted.