Mark v. Fox — 102 N.Y.S. 464

Majority

p. 464

MARK et al. v. FOX et al.

(Supreme Court, Appellate Term.

February 4, 1907.)

Headnote

Depositions—Commission to Take Testimony on Oral Questions.

The granting of an" order for a commission to take testimony on oral questions on the issue whether a seller, suing for the purchase price of goods sold, complied with the contract of sale, is unauthorized, where the moving affidavits fail to state good reasons or necessity for putting either of the parties to the expense of an open commission.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 47-51.]

Appeal from City Court of New York, Special Term.

Action by Cyrus Mark and others against Hugh C. Eox and others. From an order of the City Court of New York granting a motion for

p. 465

a commission to take testimony on oral questions, defendants appeal. Reversed.

Argued before GILDERSLEEVE, BLANCHARD, and DAYTON, JJ.

Wetherhorn & Link (Edward Browne and Henry Wetherhorn, of counsel), for appellants.

Epstein Bros. (William C. Rosenberg, of counsel), for respondents.

Appeal from order for open commission. Action to recover for goods sold and delivered. The answer alleges plaintiffs’ failure to comply with the contract of sale, whereby defendants suffered damage, $218.35,' which is counterclaimed. Upon this simple issue an open commission was ordered, without opinion of the court below. The moving affidavits fail to state good reasons or necessity for putting either of the parties to the unusual and expensive practice of an open commission.

The order should be reversed, with' costs and disbursements.