p. 693Charlotte Wainwright, Resp’t, v. William G. Low and The Sailors’ Coffee House Co. (Limited), App’lts.(Supreme Court, General Term, Second Department,Headnote
Commission to examine witnesses upon interogatories—Terms op—Oral cross-examination—Code Civ. Pro., § 889—When a proper case.Under Code Civ. Pro., § 889, the judge in granting a commission to examine witnesses upon interogatories, may, in a proper case, impose as terms of granting it, that the witnesses shall be subjected to an oral cross-examination. Where a party is to be examined in his own behalf, a proper case is presented for imposing such terms. The court is not deprived of such power by section 895.
Appeal from so much of an order of the Kings county special term for a commission to take the testimony of witnesses as denies the application of the defendants to cross-examine orally the witnesses to be examined upon commission. The request was for leave to cross-examine said witnesses orally. The justice, after signifying that he thought the request a proper one to be granted, denied it on the ground of lack of power, referring to Code Civ. Pro., § 895.
Ten Eyck & Remington, for resp’t; Moore, Low & Wallace, for app’lt.
Commissions to examine witnesses upon interrogatories are to be granted “ upon such terms as justice may require.” Code Civil Procedure, § 889.
p. 694These terms may well be, in a proper case, that the witnesses shall be subjected to an oral cross-examination.
The court has, therefore, power to annex such a condition to' the order allowing the commission, and where a party is to be examined in his own behalf, a proper case would seem to be presented.
To hold that section 895 deprives the court of the power to annex such condition in a proper case would involve as a consequence that the interests of infants, idiots and lunatics, whose rights depend upon the same section, are to be visited with an additional disability, in that the law does not grant them the protection it accords to other parties. In the present case as witnesses are to be examined at the residence of the plaintiff, no hardship to her can be apprehended.
Order appealed from modified by allowing the witnesses to be cross examined orally.
Barnard, P. J., and Dykman, J., concur.