Richmond v. Brooks, 94

Citation227 F.2d 490
Decision Date23 November 1955
Docket NumberDocket 23556.,No. 94,94
PartiesDorothea RICHMOND v. Sherwood BROOKS.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Stanley J. Mayer, New York City (Linder & Mayer, New York City, on the brief), for plaintiff-appellant.

Harold R. Brophy, New York City, for defendant-appellee.

Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

Plaintiff, residing with her present husband in California, brought suit in the New York Supreme Court against defendant, her former husband, now divorced and a resident of New York, to collect loans she had made to him. It also appears — although the court below held it immaterial — that she conducts a business in Beverly Hills, California, in merchandising women's used garments, known as "Gowns of the Stars." Defendant removed the action to the district court below and the case went to trial to a jury some three and a half years later after the taking of various depositions of the defendant in New York and the plaintiff in California, the latter by interrogatories and cross interrogatories. At the trial plaintiff offered her deposition as her proof, but the court refused to receive it and later dismissed her action for failure of proof, refusing to grant her motion for a mistrial and for adjournment. Her appeal challenges these rulings.

In excluding the deposition the trial judge held that the defendant was entitled to require the presence of the plaintiff as a part of her case and the opportunity to cross-examine her before the jury. Certain cases cited to him as differently construing F.R. 26(d), the governing rule, he distinguished as applying only to a defendant's proof. See, e. g., Weiss v. Weiner, D.C.Md., 10 F.R. D. 387; Van Sciver v. Rothensies, 3 Cir., 122 F.2d 697, 699; and cf. Pacific Vegetable Oil Corporation v. Rutger Bleecker & Co., D.C.S.D.N.Y., 3 F.R.D. 235. At an earlier trial herein, however, another judge had ruled against the defendant's contention, pointing out further that, if plaintiff chose so to proceed, she was taking a risk and the defendant had the advantage of no opportunity for the plaintiff to rebut his oral testimony. The court there had declared a mistrial of its own motion for the taking of further depositions, since it had allowed the defendant to amend his answer to add a new defense.

F.R. 26(d) is quite clear in its terms, which apply without exception equally to plaintiffs and defendants. So far as here pertinent, it reads as follows:

"(d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: * * *

"(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: * * * 2, that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; * * *."

As shown by F.R. 26(a) and also by F.R. 31 and 33, depositions include those "upon oral examination or written interrogatories."

In an important decision in admiralty, but in direct point here because of the reliance there upon the civil discovery rules, we have substantially settled the present issue. Hyam v. American Export Lines, 2 Cir., 213 F.2d 221. In that case libellant, a resident of Bombay, India, sued in the court below for cargo damage on a shipment carried by respondent from Philadelphia to Bombay; and the parties were at issue preliminarily as to whether libellant's deposition in Bombay should be taken by written interrogatories, as he sought, or by "open commission," with the entire cost thereof paid by him, as sought by the respondent. The district court's solution was to deny the libellant's application and to order him to appear for oral examination in New York. When he failed to comply, his action was dismissed. We reversed, suggesting the "unusually and seriously burdensome" character of the requirement made below and finding error of law on the part of the district judge in failing to exercise discretion to accord the protection invoked by libellant pursuant to F.R. 30(b) and in proceeding erroneously on the theory that the respondent had the right to...

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32 cases
  • Morgan v. Ward
    • United States
    • U.S. District Court — Northern District of New York
    • November 7, 1988
    ...tried. The Second Circuit's leading opinion on the admissibility of a party's deposition offered by that party himself is Richmond v. Brooks, 227 F.2d 490 (2d Cir.1955). In Richmond, the court found that the plaintiff had not "procured" her absence merely because she resided in another stat......
  • Farmer v. Arabian American Oil Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 6, 1963
    ...when travel costs will be burdensome. Hyam v. American Export Lines, 2 Cir., 213 F.2d 221, 222-223 (per Harlan, J.); Richmond v. Brooks, 2 Cir., 227 F.2d 490, 492. Nor is the claim at all realistic that these large allowances may at times favor the impecunious litigant. Such a litigant will......
  • Phelps Dodge Corp. v. Superior Court In and For Cochise County
    • United States
    • Court of Appeals of Arizona
    • March 8, 1968
    ...207 A.2d 711 (1965). to introduce his own deposition in evidence (an unusual but occasionally used procedure, see, e.g., Richmond v. Brooks, 227 F.2d 490 (2d Cir. 1955)), the trial court would then have the problem of determining whether concepts of basic fairness should permit such use, se......
  • Reynolds v. Reynolds, 21295
    • United States
    • Supreme Court of Georgia
    • September 8, 1961
    ...may be circumstances under which a plaintiff may take his own testimony upon written interrogatories, the court referred to Richmond v. Brooks, 2 Cir., 227 F.2d 490. In the Richmond case the former wife, a resident of California, sued the former husband, a resident of New York, to collect a......
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