Stapleton v. La Shelle — 109 N.Y.S. 41

Majority

p. 41

(124 App. Div. 333.)

STAPLETON v. LA SHELLE.

(Supreme Court, Appellate Division, First Department.

February 21, 1908.)

Headnote

Depositions—Taking on Written Interrogatories—Oral Cross-Examination.

Plaintiff moved for a commission to examine witnesses on written interrogatories. Defendant, on a showing that she could not frame cross-interrogatories, on which, had she merely asked therefor, the court might well have allowed her to cross-examine the witnesses orally, asked that an open commission issue, which was not necessary, so far as the direct interrogatories were concerned. Held, that the order granting plaintiff the commission as asked will be affirmed, without prejudice to application by defendant, after examination of the testimony as taken in the commission, which has been returned, for a new commission to orally cross-examine the witness.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Depositions, § 62.)

p. 42

Appeal from Special Term.

Action by John Stapleton against Mazie N. La Shelle, executrix of Kirk La Shelle, deceased. From an order granting plaintiff’s motion for a commission to examine a witness, defendant appeals. Affirmed.-

Argued before PATTERSON, P. J.. and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Martin L. Stover, for appellant.

Benno Loewy, for respondent.

This is an appeal from an order granting a a to examine a witness on behalf of the plaintiff in the state of California. From the facts that appeared in the moving papers the plaintiff was entitled to the order; the claim of the defendant being that, as she was executrix of the decedent against whom the claim was presented and had no knowledge of any contract between the plaintiff and her testator, the witnesses that were to be examined were hostile witnesses, and that it was quite impossible for her to frame cross-interrogatories, and she therefore asked that an open commission issue. In view of this condition, the court might well have allowed the defendant to cross-examine the witnesses orally; but such right does not seem to have been asked for, the demand being that the testimony should have all been taken under an open commission, which was not necessary, so far as the direct interrogatories were concerned. It was stated on the argument of this appeal that the commission has been returned duly executed, and it can be ascertained whether the further cross-examination of the witnesses is required.

The order should therefore be affirmed, without prejudice to an application by the defendant to the Special Term for leave to issue a new commission to orally cross-examine the witnesses, if it should appear, after an examination of the testimony as taken in the commission returned, that such cross-examination is necessary. No costs of this appeal. All concur.