Harden v. Hoops — 137 A.D. 299

Majority

p. 299

Percival L. Harden, Appellant, v. William T. Hoops, Respondent.

First Department,

March 11, 1910.

Headnote

Deposition — witnesses to be examined, must be named—deposition of attorneys —privilege •— denial of application for open commission.

The moving papers upon an application for a commission to take testimony upon interrogatories must name the witnesses to be examined; they cannot merely be described as proprietors, managers, etc., of a certain hotel.

A commission to take testimony upon interrogatories will not be denied because the witnesses sought to be examined are attorneys at law and communications to them may be privileged. The privilege can only be determined upon the hearing, and, moreover, it may be waived by the client.'

The denial of an application for an open commission does not bar a motion for a commission to take depositions upon written interrogatories.

Appeal by the plaintiff, Percival L. Harden, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of December, 1909, denying the plaintiff’s' motion for a commission to examine upon written interrogatories certain witnesses without the State.

I. N. Jacobson, for the appellant.

Edward D. Brown, for the respondent.

The moving papers show that the plaintiff wishes to examine the proprietors, managers and bookkeepers of certain hotels in Hew

p. 300

Jersey, but only one, Mr. A. B. Hammond, is named. A commission may only issue to take the testimony upon interrogatories of witnesses named therein, and necessarily, therefore, named in the moving papers. (Code Civ. Proc. § 887; Lazarus v. Schroder, 49 App. Div. 393 .) The plaintiff also desires to take the depositions of three witnesses, named, residing in Chicago in the State of Illinois. It sufficiently appears that the witnesses named in the moving papers are material witnesses. It is objected that, the plaintiff wishes to examine the Chicago witnesses, who are attorneys, relative to confidential communications made to them by their client; but we are unable to tell from the moving papers how much of the examination sought will be privileged. Besides, the client may waive the privilege. Questions of this sort can only be determined" ■when they actually arise: ' A commission issues as a matter of course to take the testimony of material witnesses residing without the State. The fact that a motion for an open commission had been denied was no reason for the denial of a motion for a commission to take the depositions upon written interrogatories.,:

The order should be reversed, with ten dollars costs and disbursements, and an order granted directing that a commission issue to examine upon written interrogatories the witnesses named in the" moving-papers. '

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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