Case v. Walter — 147 N.Y.S. 1102

Majority

p. 1102

CASE v. WALTER et al.

(No. 5785).

(Supreme Court, Appellate Division, First Department.

May 8, 1914.)

Headnote

Appeal from Special Term, New York County. Action by Frank M. Case, Jr., against Eugene Walter and another. From an order denying a motion for an open commission to examine .a witness in London, England, and to stay the trial of the action until the return of the commission, defendants appeal. Reversed. See, also, 146 N. Y. Supp. 1086 . Nathan Burkan, of New York City, for appellants. David Gerber, of New York City, for respondent.

We think that the plainti~ was entitled to a commission upon written interrogatories to obtain the testimony of the witness in London, and to a stay of the trial for such a time as will enable him to have the commission executed. If the commission is not returned within a reasonable time, the pl~intr~ may then apply at Special Term to vacate the stay. The order is therefore reversed, with $10 costs and disbursements, and the motion granted to the extent above stated.