Stewart v. Russell — 66 A.D. 542

Majority

p. 542

John Stewart, Respondent, v. Horace Russell and Edward D. Harris, as Executors of and Trustees under the Last Will and Testament, of Henry Hilton, Deceased, Appellants.

Headnote

Open commission—what affidavit is insufficient to justify, its being granted—the fact that security has been given for costs will not be considered.

An open commission to examine witnesses out of the State will not be granted except under peculiar circumstances, and then only when the facts stated show the necessity for resorting to that course of practice.

An affidavit made by the plaintiff’s attorney in fact, in which he swears that the plaintiff’s attorney has advised him that it would be practically impossible to frame interrogatories which would cover all the evidence sought to be elicited from the witnesses desired to be examined, no facts being stated to support such conclusion, is not sufficient to establish the necessity for the issuing of an open commission.

The fact fhat the plaintiff has given security for cost's cannot be considered in determining whether or not the commission shall issue.

Appeal by the defendants, Horace Russell and another, as executors of and trustees under the last will and testament of Henry

p. 543

Hilton, deceased, 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 18th day of October, 1901, granting the plaintiff’s motion for an open commission to take the testimony of certain named and unnamed witnesses.

Jabish Holmes, Jr., for the appellants.

Franklin D. Peale, for the respondent.

The appeal here is from an order granting plaintiff’s motion that an open commission issue to take the testimony of certain witnesses named and such others as may be produced at Belfast, Ireland. We know of no authority which justifies the'granting of such a commission upon the facts set out in this record. An open commission to examine witnesses out of the State will not be granted except under peculiar circumstances, and then only when the facts stated show the necessity for resorting to that course of practice. (Predigested Food Co. v. Scott, 28 App. Div. 59 ; Einstein v. General Electric Co., 9 id. 570.) Here all that appears is that the plaintiff’s attorney swears that he desires an open commission and the plaintiff’s attorney in fact swears that the plaintiff’s attorney has advised him that it would be practically impossible to frame interrogatories so as to cover all the evidence to be proved by the witnesses desired to be examined. Hot a single fact is alleged in either of the affidavits showing the necessity for an open commission. On. the contrary, it appears from the .affidavit of the attorney that the plaintiff has disclosed to him what he expects to prove by the witnesses named, and if this statement be true then there is no difficulty in framing interrogatories sufficient to elicit the testimony sought to be obtained; and as to the other witnesses whose homes are not given, the affidavit states that the attorney cannot give them until after he has had a consultation with his client. If he cannot give the names of the witnesses until he lias consulted with his client, it is difficult to see, in the absence of a statement of facts bearing upon the subject, or what he could prove by them, how the attorney knows that their testimony would be material. Indeed, the only reason assigned by the attorney in fact, and an affidavit of the

p. 544

client is not presented, is “that it will be practically impossible to frame interrogatories so as to cover all the evidence to be proved by thé witnesses * * * as deponent is advised by counsel and verily believes.” Rot a single fact to support this conclusion is given, and all the counsel says on the subject is that h'e “ desires an open commission.” Manifestly, an open commission' cannot be granted upon such proof. If it could, then it could be granted in any case, irrespective of .the proof presented. '

The fact that the plaintiff has given security for costs has no bearing upon the subject' and cannot be considered in determining whether or not the commission shall issue. The defendant in an action has a right, in certain cases, given to him by statute, to demand security for costs, and the fact that security was here given was because the defendants were entitled, under the statute, to the same.

The order appealed from, therefore, must be reversed, with ten. ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.