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Martin v. New Trinidad Lake Asphalt Co.

158 N.Y.S. 248 Court N.Y. App. Div. Decision date 1916-04-07 English

Delivered by DAVIS, J.

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p. 248
MARTIN v. NEW TRINIDAD LAKE ASPHALT CO., Limited.
(Supreme Court, Appellate Division, First Department.
April 7, 1916.)

Headnote

Depositions <®~>41—Oral Examination—When Proper.
While an open commission to examine witnesses upon oral interrogatories is unusual, and apt to be expensive, interminable, and harassing, it should not be denied, where the difficulties of the plaintiff’s case require it in order to obtain proofs.
[Ed. Note.—For other cases, see Depositions, Cent. Dig. § 62; Dec. Dig. <@=?41.]
Appeal from Special Term, New York County.
Action by William D. Martin against the New Trinidad Lake Asphalt Company. From an order denying a motion for an open commission to examine witnesses upon oral interrogatories, plaintiff appeals.
Reversed, and motion granted.
Argued before CLARKE, P. J., and McLAUGHLIN, DOWLING, SMITH, and DAVIS, JJ.
Henry B. Johnson, of New York City, for appellant.
Philip M. Brett, of New York City, for respondent.

This action is brought to recover royalties for the second six months of 1903 under a license agreement. A commission upon written interrogatories to examine Sewell & Warren has been issued and returned, 238 interrogatories have been put to each witness, but the plaintiff claims that the answers are evasive.

The court has made an order for the issuance of another commission to examine upon written interrogatories Sewell & Warren, and still another to examine Balfour, Lang & Fowler; the court having denied plaintiff’s application for an open commission and for a commission to examine the persons designated upon oral questions. The plaintiff appeals from that part of the order denying the motion for the open commission and for the commission to examine on oral questions the designated persons.

An open commission is unusual, and apt to be very expensive, interminable, and harassing. However, we think the manifest difficulties confronting the plaintiff in obtaining his proofs show this case to be peculiarly one for a commission to examine the persons designated on oral questions.

The order, so far as appealed from, is reversed, with $10 costs and disbursements, and the motion granted, to the extent of directing the issuance of a commission to examine on oral questions the proposed witnesses, Sewell, Warren, Balfour, Lang, and Fowler. All concur.