p. 666John J. Haines et al., App’lts, v. John R. Judd, Resp’t.Headnote
1. Deposition—Commission—Teems on allowing.The court lias power, if the circumstances of the case are such that justice requires it, to require security for costs as terms on the allowance of a commission to examine witnesses.
If there seems a prospect of defendant's succeeding and he is required by the issuance of a commission to suffer delay or incur additional expense, and his judgment for costs cannot be collected because plaintiffs are nonresidents, it is not unreasonable to require security for the costs as a condition of allowing the commission, even though the action was commenced in a district cóurt.
Appeal by plaintiffs from so much of the order granting a commission as imposes as terms the giving of security for defendant’s costs of this action.
Smith & White, for app’lts; J. C. O'Connor, Jr., for resp’t.
Usually the granting of a commission is a matter of course, the discretion of the court being exercised with respect to staying proceedings; but the Code now expressly authorizes the court to impose terms. Section 899. In this case the plaintiffs (who are non-residents) are required to give security for defendant’s costs of the action as a condition of allowing them a commission to take testimony abroad. The case having-been originally brought in a district court and removed to this court, the defendant had no right to require security for costs (see special term decision in this case); but there can be no doubt of the power of the court to require such security, as terms upon the allowance of a commission, if the circumstances of the case are such that justice requires it; to quote the language of § 899.
In this case it appears that the plaintiffs have, without apparent cause, delayed their application for a commission; and it
p. 667also appears that a recovery upon their present alleged cause of action may be doubtful. It seems from the affidavit of Mr. Peabody, managing cleric for defendant’s attorney, that in October, 1889, plaintiff’s attorney asked his consent to an amendment of the complaint substituting another cause of action upon which, as they stated, they thought they would be more likely to recover. If there seems a prospect of defendant’s succeeding, ■and he is required by the issuance of a commission to suffer delay, or to incur additional expense, and his judgment for costs could not be collected by execution, as plaintiffs are non-residents, it does not seem unreasonable to require security for such costs from plaintiff when he asks for the commission.
The order appealed from should be in all things affirmed, with •.ten dollars costs and disbursements.
Larremore, Ch. J., concurs.