Ordway v. Radigan — 114 A.D. 538

Majority

p. 538

Aaron P. Ordway, Appellant, v. Bernard Radigan and Carl Muller, Respondents.

First Department,

July 12, 1906.

Headnote

Deposition—examination of party in his own behalf—when same must be upon interrogatories.

When an application is made to examine a non-resident party to an action in his own behalf as well as other witnesses, without the consent of the other party, the examination can only be upon interrogatories and an examination upon an open commission or an examination wholly or partly upon oral questions is unauthorized.

In such a ca’se not only must the interrogatories be annexed to the order, but all the witnesses to be examined must be named.

Open commissions which have the effect of transferring the place of trial to another forum are only granted in extreme cases.

Appeal by the plaintiff, Aaron P. Ordway, 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 24th day of May, 1906, granting the defendants’ motion for a commission.

Charles Goldzier, for the appellant.

Frederick C. Simons, for the respondents.

Tills is an action for goods sold and delivered to defendants for goods consigned to them'and for moneys expended on their account. The defendants interposed a counterclaim for damages for a breach of contract, by which it is alleged that the plaintiff constituted the defendants his general agents for the sale, in the Philippine Islands, of a compound manufactured by him iii the United States known as “ sulphur bitters,” and gave them the exclusive right to there sell said compound, and agreed that he would not directly or indirectly sell or ship said compound for sale in the Philippine Islands to any other person, company or corporation.

The evidence sought to be procured under the commission is upon the issue as to whether the plaintiff violated these covenants designed to protect the defendants in their right to the exclusive agency, and upon the quantum of damages as well. The order does not

p. 539

expressly specify whether the commission authorized is an open commission or one upon interrogatories, or partly upon interrogatories and partly upon oral questions. It directs that a commission issue to one Lyon, an attorney at law residing in Manila, “ to examine under oath Carl Muller, one of the defendants herein, as a witness on behalf of the defendants, in which the plaintiff shall be at liberty to join, and any other witnesses who may be produced by either party.”

A commission may, in a proper case, issue to examine a party as well as a witness upon interrogatories pursuant to the provisions of section 887 of the Code of Civil Procedure, but this application is made by the defendants without the consent of the plaintiff, and it is expressly provided in section 895 of the Code of Civil Procedure that, without the consent of the parties, the applicant for the commission cannot be examined in his own behalf pursuant to the pi’ovisions of sections 893 and 894 of the Code of Civil Procedure, which provide for an open commission and for a commission to examine wholly or partly upon oral questions. A commission, therefore, could only issue to examine the defendant Muller upon interrogatories to be annexed thereto.

If the order was granted under section 887 of the Code of Civil Procedure it should have provided that the commission was issued to examine the witnesses upon i/nterrogatories to be annexed thereto, and all of the witnesses to be examined should have been named therein (Code Civ. Proc. § 887; Matter of Anderson, 84 App. Div. 268 ) ; and if it was intended to authorize a commission wholly or partly upon oral questions or an open commission, it should have been so expressly provided in the order. (Code Civ. Proc. §§ 893, 894.)

The facts presented are insufficient to justify the court in issuing an open commission which virtually transfers the place of trial to another forum, and for that reason such commissions are only granted in very extreme cases. (Darling v. Klock, 74 Hun, 248 ; Stewart v. Russell, 66 App. Div. 543 .)

The defendant Muller is in charge of the branch office of the defendants at Manila. The affidavit of the defendant Eadigan shows that he is informed and believes that his codefendant is without the State of Hew York, but he does not set forth the

p. 540

source of his information or the grounds of his belief. The affidavit of the attorney is positive and to the effect that Muller is not within the State of New York, but how he is in a position to have greater knowledge of the fact than Muller’s partner in business does not appear.

We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to renew.

O’Brien, P. J., Patterson, McLaughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to renew. Order filed.