(Supreme Court, General Term, Second Department.Headnote
Deposition—Oral Cross-Examination—Power or Court.Under Code Civil Proc. § 889, which, provides that commissions to examine witnesses upon interrogatories are to be granted “upon such terms as justice may require, ” where a party to the action is to be examined in his own behalf, the terms may properly be that the witness shall be subjected to oral cross-examination, and the court is not deprived of the power of annexing such a condition by Code Civil Proc. | 895, which declares that sections 893 and 894, relating to open commissions, commissions to examine witnesses upon oral questions, and the taking of depositions, are not applicable where the adverse party is an infant, or the committee of a lunatic, idiot, or drunkard, or the testimony is to be taken elsewhere than in the United States or Canada;
Appeal from special term, Kings county; Willard Bartlett, Justice.
Motion for a commission to take the testimony of plaintiff and two others in Sheffield, England. Defendants asked leave to cross-examine witnesses orally. The justice denied this request on the ground of lack of power, referring to Code Civil Proc. § 895, which declares that sections 893 and 894, which provide for the issuing of commissions to examine witnesses upon oral questions, open commissions, and ,the taking of depositions, are not applicable where the adverse party is an infant' or the committee of a lunátie, idiot, or drunkard, or where the testimony is to be taken elsewhere than in the United States or Canada. Defendants appeal from the order denying this request.
Moore, Low & Wallace, for appellants. Ten Eyck & Remington, for respondents.
Commissions to examine witnesses upon interrogatories are to be granted “upon such terms as justice may require. ” Code Civil Proc. § 889. These terms may well be, in a proper case, that the witnesses shall be subjected to an oral cross-examination. The court has, therefore, power to annex such a condition to the order allowing the commission; and where a party is to be examined in his own behalf a proper case would seem to be presented. To hold that section 895 deprives the court of the power to annex such condition in a proper ease would involve as a consequence that the interests of infants, idiots, and lunatics, whose rights depend upon the same section, are to be visited with an additional disability, in that the law does not grant them the protection it accords to other parties. In the present case, as witnesses are to be examined at the residence of the plaintiff, no hardship to her can be apprehended. Order appealed from modified by allowing the witnesses to be cross-examined orally.