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Lazarus v. Schroeder

63 N.Y.S. 359 Court N.Y. App. Div. Decision date 1900-03-23 English

Delivered by RUMSEY, J.

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p. 359
LAZARUS v. SCHROEDER.
(Supreme Court, Appellate Division, First Department.
March 23, 1900.)

Headnote

Commission to Take Testimony — Affidavit.
Under Code Civ. Proe. §, 887, providing that a commission may issue to examine the witnesses named in the affidavit therefor, it is not enough to name them as “Von Eeghen & Co.”
Appeal from special term, Hew York county.
Action by Edward B. Lazarus against Wilhelm Schroeder. From an order denying motion for a commission to take testimony, defendant appeals.
Beversed.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.
W. Irving Taylor, for appellant.
Charles G. F. Wahle, for respondent.

It is fairly to be inferred from the affidavits that the witnesses whose examination by commission is sought are not in the state of Hew York, but are now in the city of Amsterdam, Holland. There can be' no question upon the affidavit that their testimony is material. It is almost a matter of course in such cases to grant a commission to take testimony, and the defendant would be entitled to one to take the testimony of these material witnesses, but for the fact that he has not given in his affidavit the names of some of the wit

p. 360
nesses, as required by section 887 oí the Code of Civil Procedure, which prescribes that a commission may be issued to examine the witnesses named therein. It is difficult to see just how the witnesses who are. not named in the affidavit can be named in the commission to be issued. It is quite true that J. H. Heinfeld is named, and the commission to take his testimony should be granted. But there is nothing in the papers from which it can be learned who are the persons composing the firm of Von Eeghen & Co., sought to be examined. So far as they were concerned the order was correct, but so far as J. H. Heinfeld is concerned the defendant should have had his commission.

The order must therefore be reversed, and the commission granted to take the testimony of J. H. Heinfeld, without prejudice to another application by the defendant for a commission to take the testimony of the persons in the firm of Von Eeghen & Co., upon naming them, and such other persons as may be necessary, without costs of this appeal to either party. All concur.