Keenan v. O'Brien — 23 N.Y. St. Rep. 478

Majority

p. 478

John Keenan, Resp’t, v. John O’Brien and Heman Clark, App’lts.^[1]

(Supreme Court, General Term,, First Department,

Filed May 24, 1889.)

Headnote

Examination of party in foreign country on commission—When ORDER SHOULD NOT BE GRANTED.

An order in favor of a party to examine himself in a foreign country upon commission, should not be granted when the cause of his absence is a criminal charge, which he evades.

p. 479

Appeal from order granting leave to issue a commission to examine the plaintiff, who is in Canada, although a resident of this state.

Leslie W. Russell and E. T. Lovatt, for app’lts.

The courts will not aid a suitor, who utterly evades and contemns their jurisdiction and authority, to promote his own convenience and safety, by a discretionary process to examine himself in his city of refuge. McMonagle v. Conkey, 14 Hun, 326 . The privilege of a commission, even to take the testimony of a person other than the party applying, is discretionary. Ring v. Mott, 2 Sand., 683; Vandervoort v. Ins. Co., 3 Johns. Cas., 137 ; Rogers v. Rogers, 7 Wend., 614 ; McMonagle v. Conhey (supra).

George Bliss, for resp’t.

It is apparent that the plaintiff in this action is absent from the state, because of the indict ments which are pending against him, and is brought directly within the rule laid down in the case of McMonagle v. Conkey ( 14 Hun, 326 ), in which case it was held that where a plaintiff had fled to Canada to avoid criminal arrest, under the circumstances such plaintiff should not have a commission to examine himself, and where the plaintiff is a fugitive from justice, having gone to Canada to escape trial on an indictment found against him in this state, and is therefore unwilling to submit to the authority of this court, and refuses to come into this state to give testimony, that in the exercise of a sound discretion, the commission should not be granted.

In this view we concur. It is not the case of a plaintiff' who cannot come to testify, but it is that of a plaintiff who refuses to come to testify, and by his absence is refusing to submit to the authority of our courts. Such a plaintiff, being a resident of the state, certainly cannot call upon the facilities of the court to enable him to continue to evade its authority.

The order should be reversed, with ten dollars costs and disbursements.

Macomber and Bartlett, JJ., concur.