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of section 872 of the Code, which justifies an order for the examination of a witness under that subdivision. The ground of the application to examine Shannon was that from the facts and circumstances stated there was a well-grounded apprehension that the plaintiff would be deprived of his testimony if it depended upon his presence at the trial; that Shannon's relation to the defendant, his action in evading service of a subpoena when his testimony was required in another action, and defendants' action in respect to his attendance justified the conclusion that, unless the plaintiff could perpetuate his testimony, there was serious danger of its being deprived of the benefit of his testimony upon the trial of the action. The question is whether, by the statement of these facts, the plaintiff brought itself within subdivision 5 of section 872 of the Code. By that section, to entitle a party to an action to examine a witness, not an adverse party, before the trial, he must present to the judge or the court an affidavit setting forth that:

"The person to be examined is about to depart from the state, or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial, or that any other special circumstances exist, which render it proper that he should be examined, as prescribed in this article."

This provision should be read in connection with section 882, which provides that:

"Such deposition shall not be so read in evidence until it has been satisfactorily proved that the witness is dead, or is unable personally to attend by reason of his insanity, sickness or other infirmity, or that he is confined in a prison or jail, or that he has been and is absent from the state, so that his attendance could not, with reasonable diligence be compelled by subpoena."

The evident intent of these provisions was to enable any party to have the testimony of a material witness perpetuated, when it appears there was danger that the attendance of the witness could not be secured at the trial by reason of the disability of the witness or his absence from the state. What the applicant had to show was that the witness was about to depart from the state, or was sick or infirm, “or that any other special circumstances exist which render it proper that he should be examined" before the trial, instead of at the trial, and the question is whether the facts here disclosed are "other circumstances" which would justify the taking of the testimony before the trial. The statute does not prescribe what those other circumstances must be. It was quite clearly intended that the circumstances must be such as would justify the conclusion that the deposition could be read under section 882 of the Code. The proof required is quite different from that required when adverse parties are to be examined, and still these provisions should receive a reasonable interpretation; and where the special circumstances disclosed justify a well-grounded apprehension that the witness, either from physical infirmities, or his confinement in a prison or jail, or his absence from the state, could not be produced at the trial, the evidence should be taken before the trial, so that his deposition could be read under section 882. It is impossible to lay down any general rule which would include all cases in which such an examination should be had. It would not be enough to show that a

and 146 New York State Reporter

witness would endeavor to evade the services of a subpoena. Where, however, it does appear that the witness is under the control of the adverse party and that he had before refused to give any information which would enable the party making the application to subpoena him, that he has but to cross the Hudson river to be out of the state, so that his attendance could not be compelled by subpoena, together with the other circumstances here disclosed, are "other circumstances" which under subdivision 5 of section 872 of the Code entitled the appellant to the order.

The cases cited by the respondent (Wood v. Hoffman, 121 App. Div. 636, 106 N. Y. Supp. 308; Diefendorf v. Fenn, 125 App. Div. 651, 110 N. Y. Supp. 68) are not in point. In Town of Hancock v. First National Bank, 93 N. Y. 86, in speaking of subdivision 5 of section 872 of the Code, the court said:

"These 'other' circumstances evidently mean such as will make the presence and evidence of the witness at the trial doubtful and uncertain, and relate to his personal condition and purposes, as bearing upon the probability of his future attendance."

We think that upon these special facts and circumstances the order for the examination of Shannon should not have been vacated.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order denied, with $10 costs. All concur.

ELY V. MATTHEWS et al.

(Supreme Court, Appellate Division, First Department. November 6, 1908.) MORTGAGES (§•529*) — FORECLOSURE - SALE-REFUSAL OF PURCHASER TO PER

FORM-RESALE.

Where the court, on application of the purchaser at a foreclosure sale, ordered the release of the purchaser and the return by the referee of the down payment, on the ground that certain objections to the title and procedure were well founded, it could not, after values had so advanced that it was to the interest of junior mortgagees to have a resale, vacate the order and direct the referee to convey the premises to the assignee of the purchaser's bid, since that would constitute a private resale, which is not authorized either by Code Civ. Proc. § 1678, or by Gen. Rules of Practice No. 62.

[Ed. Note. For other cases, see Mortgages, Dec. Dig. § 529.*]

Appeal from Special Term.

Action by Smith Ely against Vira G. Matthews and others. From an order, made on plaintiff's application, directing the referee herein to execute and deliver a deed to the assignee of the bid of the purchaser at a foreclosure sale herein, and vacating an order denying plaintiff's motion to compel the purchaser to complete his purchase, and directing the repayment of the money received by the referee from him, defendants James H. George and others, as executors of Richard Grant, deceased, and the New Amsterdam National Bank, appeal separately. Order reversed, and motion denied.

See 58 Misc. Rep. 365, 110 N. Y. Supp. 1102.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Joseph J. Hood, for appellants George and others.

H. Aaron, for appellant New Amsterdam Nat. Bank.

LAUGHLIN, J. This is an action to foreclose a first mortgage on real estate for $100,000. A third mortgage for $20,000 and a fourth for $2,000 is held by the executors, appellants, and a fifth for $20,000 is held by the bank, appellant. The judgment directing a sale of the premises was entered on the 12th day of November, 1907, and the sale took place on the 19th day of December thereafter, during the period of business depression and stringency in the money market, and after an adjournment of one week at the request of subsequent mortgagees. The attorney for the executors requested plaintiff to consent to a further adjournment for 30 days, and offered to pay $500 to cover any possible loss thereby; but the offer was refused. The premises were awarded to the highest bidder at $135,000. The purchaser refused to complete his purchase upon grounds, among others, that the premises were to some extent obstructed by a wall on adjacent lands, and burdened with an easement for its maintenance, and that the permanent receivers, appointed by the Court of Chancery in New Jersey, of the Electric Rubber Manufacturing Company, which owned a sixth mortgage on the premises for $10,000, had not been made parties, and that joining the ancillary receiver, as was done, was not sufficient. The court, on motion by plaintiff to compel the purchaser to complete his purchase, decided that these objections were well taken, and that the purchaser was entitled to be released, and an order to that effect, directing the referee to refund the down payment, was duly entered.

The practice now under review is wholly unauthorized, regardless of whether or not that motion was correctly decided. That order is not before us for review, and it is not necessary that we should discuss its merits. The order having been granted at the instance of the purchaser, neither he nor any one claiming in his right should be heard to say, after the property has advanced in value, that he wishes to reconsider his action, and, since he could now make a profit on the purchase, he is willing to take title. He made his election to stand upon the objections to the title, and he convinced the court that they were well founded. His right to take title as a purchaser thereupon terminated, and his only right was with respect to being reimbursed. Although appellants did not oppose the motion to compel the purchaser to complete his purchase, yet since the purchaser duly presented the points for adjudication, and since it affected their rights, the decision at once inured to their benefit, and it was not competent for the plaintiff, the purchaser, and a third party, by private agreement or understanding with respect to the assignment of the bid, to deprive them of the right to a resale of the premises. When the sale was set aside it was the same as if it had never taken place. Of course, the order might have been reviewed, and perhaps reversed, on appeal, and the court which made it might, perhaps, on a motion for a reargument, have vacated it, and it might have been vacated for fraud; but it could not be vacated to permit the assignment of the bid and the completion

and 146 New York State Reporter

of the purchase after real estate values had so advanced that it was for the interest of appellants to have a resale. While the order stood the purchaser had no title, and he could neither have insisted upon a deed to himself nor could he confer any right thereto upon an assignee; for that would constitute a private resale, which is neither authorized by statute nor by the practice of the courts in such cases. Code Civ. Proc. § 1678; rule 62, Gen. Rules of Practice; Freeman v. Munns, 15 Abb. Prac. 458; Jones on Mortgages, vol. 2, § 1681; Thomas on Mortgages, § 967; Guard's Titles to Real Estate (4th Ed.) p. 686. It never was the practice, where a purchaser rejects title or refuses to perform, and is sustained in his position by the court, to accept, without readvertising, another to complete the purchase for him. The long-established practice requires that in such case there shall be a resale (Thompson v. Dimand, 3 Edw. Ch. 298), and in the case at bar the terms of sale so provided.

The order should therefore be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.

GROSS v. GROSS.

(Supreme Court, Appellate Division, First Department. November 6, 1908.) 1. INFANTS (§ 78*)-ACTIONS AGAINST-GUARDIAN AD LITEM-NECESSITY FOR APPOINTMENT.

On suit to dissolve a partnership and for an accounting, the court could not require the infant defendant to pay money to the receiver, where no guardian had been appointed as required by Code Civ. Proc. § 471, and hence the infant was not punishable for contempt in refusing to obey the order.

[Ed. Note. For other cases, see Infants, Dec. Dig. § 78.*]

2. PARTNERSHIP (§ 77*)-PROPERTY-SALE BY PARTNER-EFFECT.

Each partner is vested with the title to firm property, and a sale by one of a part of it and receipt of the proceeds is not a conversion.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 125; Dec. Dig. § 77.*]

3. PARTNERSHIP (§ 325*) – PROPERTY IN PARTNER'S HANDS - RIGHTS OF RE

CEIVER.

A receiver of a partnership was entitled to all the firm property in the hands of either partner, but no order could be made requiring one partner to turn over firm property until it appeared that any was in his possession, and that he received property and had disposed of it would not justify the court, before final judgment, in ordering him to return and in enforcing the order by contempt proceedings; it being required that the equities be settled on the accounting and the amount due from one partner to another be determined by the final judgment, which must be enforced by execution.

[Ed. Note. For other cases, see Partnership, Dec. Dig. § 325.*]

Appeal from Special Term.

Action by Charles Gross against Bernard Gross. From an order adjudging defendant guilty of contempt and requiring certain payment, defendant appeals. Reversed, and motion denied.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Wesselman & Kraus, for appellant.

INGRAHAM, J. This action was commenced for the dissolution. of a copartnership and for an accounting. Plaintiff asked as relief that a receiver be appointed and that defendant turn over to such receiver the sum of $1,150, received by him as the proceeds of a sale of copartnership property. The defendant admits the copartnership, and seems to admit the sale of the copartnership property without the consent of the plaintiff, but denies that he kept the proceeds of the sale and failed to account to the plaintiff for any part or portion of the same, and then alleges that he is an infant. The plaintiff made a motion for a receiver of the copartnership property, and that motion was on April 21, 1908, granted, the plaintiff was appointed receiver, and in that order the defendant was ordered to pay to the receiver all moneys received by him from the sale of any partnership property. Subsequent to that order plaintiff made a motion for an order directing the defendant to pay to the receiver the sum of $1,150, which it appears he admits he has received from a sale of the copartnership property, or be punished for a contempt of court for failure to comply with the terms of the order appointing the receiver, which directed him to pay over to the receiver the proceeds of the property in his hands. It seems that a copy of the order appointing the receiver was served upon the defendant on May 15, 1908, and that the defendant had failed and refused to comply with its terms; that the plaintiff demanded of the defendant that he repay the money required to be paid by the order appointing the receiver; and that the defendant refused to pay. Defendant interposed an affidavit in answer to this application, alleging that he is under the age of 21 years; that he was sued, without the appointment of a guardian ad litem, and, although the notice of motion for the appointment of a receiver was served upon him, he was entirely inexperienced in legal proceedings and made no opposition to the motion; that, as he was an infant, he was advised that the service of the papers was incomplete and irregular; and that he therefore allowed the time to go by without seeking the advice of counsel. He further swears that he has disbursed this money so received from the sale of the property among the creditors of the copartnership, and that he has no part of the sum of $1,150 received from such sale of the property.

The entry of the order requiring the defendant to pay this sum of money was irregular, in that the action was against an infant, and a guardian ad litem had not been appointed. By section 471 of the Code of Civil Procedure it is provided that an infant defendant must appear by guardian, who must be a competent and responsible person appointed upon the application of the infant. I think it is clear, therefore, that no order could be måde in an action against the infant until the infant was properly before the court by a guardian ad litem. The summons and complaint were served upon this infant defendant, and the fact that the defendant was an infant was evidently concealed from the court, and the order obtained upon the assumption that the defend

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