Opinion
June 28, 1912.
Philip Carpenter, for the appellant.
David Gerber, for the respondent.
This is an appeal from an order granting a motion to vacate an order for the examination of Fanny Ward Lewis as a witness herein on behalf of the defendant. The action is brought to recover damages for the publication of a libel. The answer sets up among other things certain partial defenses in mitigation of damages. The original moving affidavits sufficiently showed that the testimony of the witness was material and necessary for the defendant as to two of these defenses. Mrs. Lewis is a resident of London, Eng., and an actress who spends much of her time in this country, being abroad during the summer months. She is under contract to appear in this country after October 1, 1912, and states her intention to be in the State of New York at that time. The mere possibility that a witness may return within the jurisdiction at a future date is not a sufficient ground for vacating an order for examination, nor is there any certainty that she will be here at the time of the trial of the action. She may well change her plans and conclude either to remain in England or to come here too late for the trial of an action in which she has no personal interest. An expressed intention upon the part of a non-resident to return to the State for the trial is not a sufficient reason for refusing an examination ( Commercial Publishing Co. v. Beckwith, 57 App. Div. 574; Tanenbaum v. Lippmann, 89 id. 17), nor is the fact that a witness can be located and his testimony taken at some future time by commission. ( Stapleton v. La Shelle, No. 3, 124 App. Div. 661.)
The statement of the witness that she "cannot give any testimony of any kind with reference to the affairs of Jefferson, Klaw Erlanger, as I know nothing about that firm," is no reason for denying the desired information. Among other subjects, she is sought to be examined as to the character and reputation of plaintiff at the time of the publication of the alleged libel, that being one of the issues tendered in mitigation of damages, and she does not deny that she has knowledge thereof. Her denial of the receipt of any letters from plaintiff is so qualified as to render it the expression of her conclusion as to their legal effect rather than the clear statement of a fact. In any event mere denial of knowledge as to the subject-matter of the examination is not sufficient. ( Turck v. Chisholm, 53 Misc Rep. 110; Davis v. Stanford, 37 Hun, 531; Matter of Nolan, 70 id. 636.)
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to vacate and set aside the order for examination and the subpœna duces tecum heretofore served herein is denied, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.