Stuart v. Spofford — 122 A.D. 47

Majority

p. 47

Thomas G. Stuart and William C. Clopton, Respondents, v. Paul N. Spofford, Appellant.

First Department,

November 22, 1907.

Headnote

Deposition — when open commission cannot issue — proceedings stayed for failure to file undertaking ^-waiver.

A commission to take testimony .granted on. the application ot ■ the party to be examined cannot provide for an examination upon oral questions without the consent of the adverse party, such examination being expressly prohibited by section 895 of the Code of Civil Procedure.

A party, whose proceedings have been stayed until he deposits a sum of money to secure the payment of costs or at his election an undertaking in double the amount, is not entitled to a commission to take testimony without complying with the order. The filing of an undertaking for half the amount required is not a compliance with the order,, nor is the default waived by failure of the adverse party to return the undertaking as not complying with the order,

Appeal by the defendant, Paul N. Spofford, 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 16th day of 'July, 1907, directing that a commission issue to take the testimony of William 0¿ Clopton as a witness on behalf of the plaintiffs.

James R. Knapp, for the appellant.

Charles M. Parsons, for the respondents.

This order, so far as it allows the examination of one of the plaintiffs upon oral questions, violates, section 895 of the Code of Civil Procedure. It is there expressly provided that a commission to examine wholly or partly upon oral questions cannot be issued where the Witness to be examined is a party to the action, and is making the application on his own behalf, except by consent of the parties (Ordway v. Radigan, 114 App. Div. 538 ); and the provision that the witness is to be examined “ upon such oral questions at said examination as the counsel for the plaintiffs and the defendant may. think proper ” is, therefore, unauthorized. It seems to me, however, that the plaintiffs’ proceedings were stayed in conse

p. 48

quence of their having failed to give the security for.costs required by the order of. August, 1906, ' That order required, the plaintiffs, either to, deposit the sum of $250'to he applied to the payment of, the costs, if any, awarded- against' them,' or, at their election, file with the clerk of the county of Hew York an undertaking to the defendant, with two sureties,, to the,effect that they would pay upon demand to the.defendant all costs which., might be awarded to him in the action, not exceeding, $500. Hq such undertaking has been filed. Ho motion was made to vacate or modify this order. The plaintiffs filed an undertaking for $250 which was served upon the defendant, but that was not a. compliance with the order of-tlie court, and the stay was not thereby vacated. . The fact that, the defendant did. not return the "undertaking as not. a compliance with the order did not waive or vacate the stay. The order was not void. It stayed the plaintiffs’ proceedings until sueli undertaking should be filed and 'served; and- the plaintiffs Were not authorized to comply with the order of the court so far as it pleased them and dis-. regard its other provisions .and then claim, because the' defendant had simply rested upon the order,- its provisions, were waived,

The order appealed' from . should' be - reversed, with, ten dollars costs and disbursements, and the motion. denied* with ten dollars costs, with leave to renew the application for . a commission upon written interrogatories when the order requiring security foi‘ costs is complied, with. '■ " .

Patterson, P. J., McLaughbin, -'Houghton and Scott, JJ., ■ concurred.. .

Order reversed, with- ten dollars' costs. and disbursements, and motion denied, with ten dollars costs,: with leave to-renew as stated-in opinion. Settle order on notice.'.

Cases cited

Ordway v. Radigan 114 App. Div. 538 N.Y. App. Div. 1906-07-12 p. 47