Lamchick v. Ackerman — 130 N.Y.S. 144

Majority

p. 144

LAMCHICK et al. v. ACKERMAN et al.

(Supreme Court, Appellate Term.

June 29, 1911.)

Headnote

Depositions (§ 39^[1] )—Issuance—Form and Requisites.

A commission to bike testimony, which is not issued, signed, or sealed, by the court is a nullity.

[Ed. Note.—For other cases, see Depositions, Cent. Dig. §§ 54^60; Dec. Dig. § 39.^[1] ]

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Louis Lamchick and Jacob Lamchick, copartners doing business under the firm name of Lamchick Bros., against David Ackerman and others, copartners doing business as Ackerman Bros. From a judgment of the Municipal Court for plaintiffs, defendants appeal.

Reversed, and new trial ordered.

Argued before SEABURY, GUY, and BIJUR, JJ.

p. 145

Michael Kaufman, for appellants.

Otterbourg, Steindler & Houston (Charles A. Houston, of counsel), for respondents.

The plaintiffs, in order to prove their claim in this case, resorted to the alleged testimony of one of the defendants, taken under a commission which had been applied for by the defendants in order to take the testimony of some witnesses residing in Wisconsin. This commission was applied for by the defendant, the interrogatories were settled by consent, but the commission itself was not issued by or signed or sealed by the court. The court was without jurisdiction to take the testimony given by virtue of a commission not issued or signed by the justice and such commission was a nullity. No motion to- suppress it was necessary under such circumstances, no matter by which party the same was applied for, and no statements of witnesses alleged to have been taken thereunder was competent to be read in evidence upon the trial. Objection to the admission of evidence taken under the commission was duly made at the trial.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.