Parker v. Lithgoe — 36 N.Y. St. Rep. 981

Majority

p. 981

John Parker et al., v. Mark Lithgoe, Impl’d.

(Supreme Court, General Term, First Department,

Filed February 11, 1891.)

Headnote

Depositions—Commission to take testimony.

Where it appears that the rights of a party are not sufficiently protected by a commission with interrogatories, as he cannot anticipate the nature of the testimony to be brought out from witnesses to be examined thereunder, an open commission should be issued, if he so desires, with permission to either party to call witnesses in addition to those named in the commission.

Appeal from order granting commission to take the testimony of Jane Smith and other witnesses residing in New Zealand.

One of the heirs under a will, Jane Smith, was adjudged in an action to construe the will to be dead, but before judgment was entered she applied for leave to defend, which was granted, and upon her motion a commission was granted to take her testimony and that of witnesses on the question of identity. The affidavit showed that she was one of the parties to the action, was one of the devisees named in the will, and as such had an interest in the estate; and that it would be imprudent for her to make the journey from Auckland to New York, she being over eighty-three years of age.

J. A. Skinner, for app’lt; B. Vanderhoven, for resp’t.

We think the defendant should not be deprived of the opportunity to give such testimony as she may be able to procure for the purpose of establishing her rights which are sought to be cut off by this action.

It may be that in a commission with interrogatories the rights of the appellants are not sufficiently protected, as they cannot anticipate the nature of the testimony which will be brought out from the witnesses whom it is sought to examine upon the part of the defendant.

If, therefore, the appellants desire that an open commission should issue for the examination of the witnesses upon the part of the defendant instead of a commission upon interrogatories they should be granted the opportunity which an open commission affords them.

They should also be allowed to call such witnesses as they may produce before the commission and examine them without their being named in the commission; the respondent to have the priv- - ilege of calling witnesses in addition to those named in the commission in answer to the evidence adduced by the witnesses produced by the appellant. If the appellant desires that the order for the commission should be modified in this respect, the respondent must stipulate that an order may be entered in accordance with these suggestions or the order granting the commission will be reversed, with ten dollars costs and disbursements; and upon such stipulation being given, if the appellants so desire, the order will be modified in accordance with the views herein expressed and as modified affirmed, without costs to either party.

If, however, the appellants do not desire an open commission

p. 982

as suggested, the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., Daniels and O’Brien, JJ., concur.