Spinney v. Field — 17 N.Y.S. 890

Majority

p. 890

Spinney v. Field et al.

(Supreme Court, General Term, First Department.

February 18, 1892.)

Headnote

Deposition—Appointment of Commissioner—Suggestion by Witness.

The mere fact that the suggestion of the name of a certain person in a foreign country to take testimony as comissioner was made by the person there whose testimony was to be taken, will not, of itself, invalidate the appointment of such commissioner.

Appeal from special term, New York county.

Action by Joseph S. Spinney against William H. Field and another. From an order appointing a commissioner to take the testimony of Santiago Pascoe at Potosí, Bolivia, South America, defendants appeal,

affirmed.

Argued before Van Brunt, P. J., and Patterson and O’Brien, JJ.

Charles A. Deshon, for appellants. E. P. Johnson, for respondent.

This is an appeal from an order granting a commission upon the ground that the commissioner named is an improper person. The only suggestion upon which is based the impropriety of his selection is that his name was suggested by the witness. That the commissioner has any' relations with the plaintiff or the witness is not shown; and the plaintiff’s attorney frankly told defendants that the name had been suggested by the witness. Without something more substantial than mere suspicion, in view of the difficulty in getting a commissioner, we do not think the order should be interfered with. The order should be affirmed, with $10 costs and disbursements. All concur.