MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.
Section 870 of the Code of Civil Procedure of New York provides that "the deposition of a party to an action pending in a court of record or of a person who expects to be a party to an action about to be brought . . . may be taken at his own instance or at the instance of an adverse party or of a co-plaintiff or co-defendant at any time before the trial as prescribed...
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