Ruckert v. Bursley — 51 A.D. 377

Majority

p. 377

Max Ruckert, Appellant, v. Ira L. Bursley, Respondent.

Headnote

Motion for the re-execution of a commission — reservation ■until ike trial of all questions as to the sufficiency of the witness’ answers is improper.

Where a motion to re-execute a commission procured by the plaintiff is made by the defendant because of the failure of the witness to answer certain cross interrogatories, the plaintiff is entitled to know before the trial whether or not he is to have the benefit of the commission; it is, therefore, improper for the court to deny the motion and reserve until the trial all questions as to the sufficiency, responsiveness or relevancy of the witness’ answers on cross-examination under the commission.

Semble, that such questions cannot be raised at the trial.

Appeal by the plaintiff, Max Ruckert, from so much of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York oh the 5th day of March, 1900, as provides that all questions as to the sufficiency, responsiveness or relevancy of the plaintiff’s answers on cross-examination, taken under a commission issued in the action, be reserved to be disposed of on the trial of the issues in the action.

Marshall B. Clarke, for the appellant.

Samuel R. Taylor, for the respondent.

The notice of motion in this case asked for a re-execution of a commission directed to a party in Cros S chon an, in Saxony, for the reason that he had failed to answer certain cross-interrogatories. The affidavit upon which the motion was based specified such fact, and certain questions and answers which form a part of the deposition were set out and form a part of this record. Mo affidavits were read in opposition. The court denied the motion and made an order that all questions as to the sufficiency, responsiveness or relevancy of the plaintiff’s answers on cross-examination under said commission be and are hereby reserved to be disposed of on the trial of the issues in this action.

- It is, therefore, apparent that the defendant did not obtain the relief for which he moved, and the plaintiff is presently unable to

p. 378

tell whether he has a commission or not. The motion to re-execute is properly made before trial, and questions relating thereto are not permitted to. be raised at the trial. (Code Civ. Proc. § 910; Union Square, Bank v. Reichmann, 9 App. Div. 598 .)

By the reservations made in the order, it is impossible to say whether the court will-suppress the commission, or whether it will strike out the part of. which complaint is made, or whether it will permit the deposition to stand and to be read as it stands. The plaintiff is entitled to know before the trial whether he is to have the benefit of his commission or not, and as this order leaves this matter in an uncertain state upon this point, it should be reversed, with ten dollars costs and disbursements. „ .

Present — Van Brunt, P. J., R'umsey, Patterson, Ingraham and Hatch, JJ.

Qrder reversed, with ten dollars costs and disbursements.