Opinion
June, 1920.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The other circumstances mentioned in subdivision 5 of section 872 of the Code of Civil Procedure mean such circumstances as will make the presence and evidence of the witness at the trial doubtful or uncertain, and relate to his personal condition and purposes as bearing upon the probability of his future attendance. No such situation is here suggested. ( Town of Hancock v. First Nat. Bank, 93 N.Y. 82; Chartered Bank of India v. North River Ins. Co., 136 App. Div. 646; Harburger v. Westchester Fire Ins. Co., 167 id. 1; Bernstein v. Solomon, 140 id. 316; American Woolen Co. v. Altkrug, 139 id. 671, 672.) Jenks, P.J., Mills, Putnam, Kelly and Jaycox, JJ., concur.