Bliss v. Hornthal — 33 N.Y.S. 1018

Majority

p. 1018

BLISS et al. v. HORNTHAL et al. AUFFMORDT et al. v. SAME. WICHER et al. v. SAME.

(Supreme Court, General Term, First Department.

May 17, 1895.)

Headnote

Deposition—Open Commission.

An order granting plaintiff’s motion for an open commission will not be disturbed on the ground that an open commission had previously been issued in an action by a third person against defendant involving the same issues, and that defendant was represented by counsel at the examination, unless he consents that the testimony so taken may be read on the trial of plaintiff’s action.

Appeal from special term, New York county.

Actions by Cornelius N. Bliss and others against Lewis M. Hornthal and others, and by Clement A. Auffmordt and others against the same defendants, and by Thomas A. Wicher and others against the same defendants. From orders granting plaintiffs’ motion for open commissions herein, defendant Hornthal appeals in each case.

Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

John V. Bouvier, Jr., for appellant.

Charles E. Hughes, for respondents.

The strongest argument against an open commission is that, with the names of the" witnesses and the knowledge to be derived from the open commission taken in the case of Baily v. This Defendant (now on file), plaintiffs are in a position to formulate the necessary interrogatories. If, however, the labor of framing numberless interrogatories can be avoided, it should be. The defendant, by permitting the testimony already taken to be used upon the trial, subject to all proper objections, can avoid a commission, either open or upon interrogatories. Without passing upon the question whether, in such a case as this, an open commission should be issued, we think, upon the fact appearing that one has been issued by consent in a case between another plaintiff and this defendant, involving practically the same issues, upon which defendant was represented by counsel, and had the opportunity of cross-examining the witnesses, that unless he consents to the reading of the testimony so taken he has no just subject of complaint There is no claim made that the former examination was not proper and fair and exhaustive, nor is any good reason given why the testimony so taken could not be used. The orders should be affirmed, with $10 costs in each case and disbursements.