Merino v. Munoz

Headnote

Depositions—Order for Commission—Modification.

Where, on application by a nonresident plaintiff for commission to examine nonresident witnesses, the opposing affidavit avers that plaintiff has purposely omitted his name as a witness to embarrass defendant in obtaining certain evidence in his possession, the order granting the commission will be modified by requiring plaintiff’s name inserted, unless he stipulates to be present at the trial for examination.

Appeal from special term, New York county.

Action by Pedro A. Merino, as surviving partner of Pedro N. Merino & Sons, against Leontine G. Munoz, as executor, etc.,, of Jose M. Munoz, deceased. From an order granting plaintiff’s motion to take testimony on commission in England, defendant appeals. Modified.

Plaintiff, who resided in London, England, applied for commission to take the testimony of certain witnesses in London. In defendant’s opposing affidavit, which it was claimed was not contradicted, it was contended that plaintiff was in possession of documentary evidence essential to the defense, and purposely kept his name out of the commission, to put obstacles in the way of defendant’s examining him or obtaining the use of such evidence. The order granting the commission omitted the substitution of plaintiff’s name, and defendant appealed.