Mercantile National Bank v. Sire — 100 A.D. 459

Majority

p. 459

The Mercantile National Bank of the City of New York, Respondent, v. Henry B. Sire, Appellant.

Headnote

‘Commission to take testimony in another State — issued pending & trial before a. referee.

The court lias power, while a case is being tried before a referee, to issue a commission to take the testimony in another State of á material witness, when- it appears that the issuance of the commission' will necessitate a delay in the ■ decision of the case of not more than thirty days.

Appeal by the defendant, Henry B. Sire, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of August, 1904, denying the defendant’s motion to issue' a second commission to take the further testimony of Léander S. Sire as a witness for the defendant.

Franklin Bien, for the appellant.

Albert S. Ridley, for the respondent.

I think this application should have been granted. It does not seem to be disputed but that the execution and delivery of the note sued on was the result of an agreement between the plaintiff’s assignor and Leander S. Sire, and that the determination of the defense set up in the answer depends upon the conversations between Sire and the officers of the plaintiff’s assignor; that the officers of the plaintiff’s assignor have testified to conversations with Sire, and that it is essential that the defendant should have an

p. 460

opportunity ,of . denying the truth of these conversations. A-s the defendant is unable to procure the attendance of Sire in this {State,. I can see no reason why he should be deprived of Sire’s testimony, contradicting the testimony of the plaintiff’s assignor’s officers as to-such conversations. There can be no question but that the court has power to issu'é a commission at any time before the case is.finally decided, and ,as the. case is being tried before a referee -the only delay would be an adjournment for a few weeks' until the -commission to St. Louis could be returned. The defendant should, how-, ever, secure the return of the commission within thirty days of the entry of the order, and the final closing of the reference should not be delayed on account of the commission beyond that time.

It follows that the order appealed from must be reversed, with 'ten dollars costs and disbursements, and the motion granted.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ.,, concurred.

Order reversed, with ten dollars -costs and disbursements, and motion granted. - .