Gowans v. Jobbins — 91 N.Y.S. 842

Majority

p. 842

GOWANS et al. v. JOBBINS.

(Supreme Court, Appellate Division, Fourth Department.

January 25, 1905.)

Headnote

1. Depositions—Foreign Commissions—Expenses oe Counsel.

An order directing that open commissions issue to take testimony of foreign witnesses in behalf of defendant should provide for the payment by defendant of the actual expenses incurred by one of the attorneys for plaintiffs in attending the examination, and also a per diem allowance, not exceeding $20, for the time such attorney is necessarily absent from - home, attending the examinations; and defendant should be required to deposit a sufficient sum to cover such expenses and allowance, or to give satisfactory security therefor.

2. Same—Examination by Interrogatories—Election.

An order directing the issuance of open commissions to take testimony of foreign witnesses in behalf of defendant, and providing for the pay- ■ ment by defendant of an allowance to, and expenses of, plaintiff’s counsel, should also provide that, in lieu of the examination of the witnesses by open commission, defendant might, at her election, within a certain time, examine the witnesses on written interrogatories to be annexed to the commissions to be issued according to the practice prescribed in such cases.-

p. 843

Appeal from Special Term, Erie County.

Action by John Gowans añd others against Frances H. Jobbins, as ancillary executrix of William F. Jobbins, deceased. From an order directing that open commissions issue to take testimony of foreign witnesses in behalf of defendant, plaintiffs appeal.

Modified.

See 86 N. Y. Supp. 312 .

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Adelbert Moot, for appellants.

Simon Fleischmann, for respondent.

The order, as amended upon this appeal, will provide that the actual expenses incurred by one of the attorneys for the plaintiffs in attending the examinations before the commissioners of the witnesses produced on behalf of the defendant are to be paid by the defendant, and also a per diem allowance, not exceeding $20, for the time such attorney is necessarily absent from home, attending such examinations. Said expenses and allowance are to be taxed before a Justice of the Supreme Court on three days’ notice. The payment thereof is to be made within 10 days after said taxation. The defendant is to deposit, as designated in the order, a sufficient sum, stated therein, to cover the expenses and allowance to such attorney, or to give satisfactory security therefor, within 10 days after service of a copy of the order, together with notice of entry thereof. In lieu of the examination of said witnesses by open commission, the defendant, at her election, made within 20 days thereof, may examine said witnesses on written interrogatories to be annexed to the commissions to be issued, conforming to the practice prescribed in such cases.

The form of the order, and amount and manner of the deposit to be made, or the security to be.given, to be settled by and before Mr. Justice SPRING on two days’ notice.