Benedict v. Richardson — 22 N.Y.S. 839

Majority

p. 839

BENEDICT v. RICHARDSON.

(Supreme Court, General Term, Fifth. Department.

April, 1893.)

Headnote

1. Deposition—Commissioner’s Authority—Expiration.

Where a commission issues to take the depositions of several witnesses without the state, the commissioner’s authority expires on the return of his commission in pursuance of the direction therein contained, and the filing of the same with the clerk of the court from whence it issued, together with the depositions of a portion of the witnesses; and the commissioner has no power to thereafter proceed, and take the depositions of other witnesses named in the commission.

2. Same—Motion to Suppress—Delay.

A brief delay in making a motion to suppress a deposition irregularly and improperly taken is no ground for denying the motion, where it was made before any term of court at which the case might have been tried.

Appeal from special term, 'Monroe county.

Action by Clare A. Benedict against Milton T. Richardson. From an order suppressing the deposition of one Emma C. Benedict, the wife of plaintiff, purporting to have been taken in Chicago, 111., on commission, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.

C. Doremus, for appellant.

Abraham Benedict, for respondent.

By stipulation an order was made, at the instance of the defendant’s counsel, in June, 1891, directing that a commission issue to a person named in Chicago, to take the depositions of nine witnesses, one of whom was Emma C. Benedict, upon interrogatories annexed to the commission. A commission, in pursuance of such order, having been issued, the commissioner proceeded to take evidence in Chicago, and did actually take the depositions of six witnesses, but not that of Emma C. Benedict. These depositions were returned with the original commission, and properly filed with the clerk of Monroe county on the 21st day of September, 1891. Subsequently, and without any further authority conferred upon the commissioner, the latter proceeded, on the 31st day of May, 1892, to take the deposition of Emma C. Benedict. It does not appear, clearly, when such deposition was filed. The order

p. 840

suppressing this deposition, under Code, § 910, upon the ground that it was improperly and irregularly taken, was correct, and should be affirmed. When the commissioner returned his original commission, in pursuance of the directions contained therein, and the same was filed with the county clerk of Monroe county, the proper custodian thereof, he no longer possessed any power to act as a commissioner to take the testimony outside of the state of New York to be used in this state.

We do not think that loches can be imputed to the plaintiff, in not making this motion earlier; for it does' not appear distinctly when the deposition so irregularly taken was filed with the county clerk. But the motion was made before any term of the court at which the case might have been tried, and consequently the defendant could not be prejudiced by the brief delay. The order appealed from should be affirmed.

Order appealed from affirmed, with $10 costs and disbursements. All concur.