Citation. 22 Ill.227 F.2d 490 (2d Cir. 1955)
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The Plaintiff, Richmond (Plaintiff), a resident of California brought suit against her ex-husband Brooks (Defendant), a New York resident, in New York Supreme Court. Plaintiff offered her deposition at trial as her proof, but the court refused to receive it and later dismissed her action for failure of proof.
Synopsis of Rule of Law.
A foreign litigant’s inability to be physically present at trial may be substituted by her deposition, which may be offered as substantive material at trial.
Facts.
Plaintiff, remarried and living in California, sued her ex-husband in New York for repayment of loans. Because of the long distance between coasts, interrogatories and cross-interrogatories of both parties were taken. Plaintiff was unable to be present at trial and attempted to offer her deposition as truth at the trial. The trial court judge refused to receive it and later dismissed her action for failure of proof and refused to grant her motion for a mistrial and for adjournment.
Issue.
Whether a foreign plaintiff, who is unable to be present at trial, may submit as proof her deposition taken during the course of litigation.
Held.
Yes. The unusually and seriously burdensome character of a case such as this does not deny plaintiff remedy in New York.
Discussion.
Federal courts are open to foreign parties. Procedural rules, which in their practical application deny jurisdiction to these parties, are not to be construed in a manner that imposes unusual and burdensome conditions on these litigants. Though parties have the right to cross-examine party-opponents at trial, the unavailability of foreign litigants due to burdens such as distance, may except that right. Judges have discretion to invoke such a protection.
