p. 259(Supreme Court, Appellate Term.Headnote
Depositions—Obal Cross-Examination—Orders.An order allowing a commission and permitting an oral cross-examination of the witnesses without the reasons therefor being stated by affidavit and incorporated in the record is erroneous, as special circumstances must be shown where the privilege of oral examination or cross-examination is sought.
Appeal from City Court of New York, Special Term.
Action by James O. Woodward, administrator of the goods, etc., of Robert Gordon Hardie, deceased, against William Skinner. From an order of the City Court, granted at Special Term, allowing the oral cross-examination of witnesses on commission, defendant appeals. Modified.
Argued before SCOTT, GIEGERICH, and McCALL, JJ.William P. S. Melvin, for appellant.
William L. Flagg, for respondent.
The record discloses no ground supporting the decision of the court below in allowing oral cross-examination of the witnesses sought to be examined by commission. The papers do not show what the proposed witnesses are expected to testify to, or even about. Even the nature of the action is not shown. ' The only ground anywhere assigned for the court’s action is in the opinion, which states that the plaintiff appeared and requested leave to orally cross-examine. It is altogether probable that the learned justice had good reasons for his de
p. 260cisión, and those reasons were apparently stated by the plaintiff on the hearing; but they should have been made in the form of an affidavit, and incorporated in the record. Special circumstances should be shown where the privilege of oral examination or cross-examination is sought. Laidley v. Rogers (Sup.)
22 N. Y. Supp. 458 ; Frounfelker v. D. L. & W. Ry., 81 App. Div. 67 , 80 N. Y. Supp. 701 .
The order should be modified by striking out all provisions for oral examination or cross-examination, and substituting therefor provisions for written interrogatories and cross-interrogatories, and, as so modified, affirmed, without costs.