Majority
p. 766Joseph S. Spinney, Resp’t, v. William H. Fields et al., Ex’rs, App’lts. (Supreme Court, General Term, First Department, Filed February 18, 1892.)
Headnote
Depositions—Commissioner.An order granting a commission to take testimony in a foreign country should not be disturbed on the ground that the commissioner is an improper person solely on proof that his name was suggested by the proposed witness.
Appeal from order of special term, appointing James Schulze commissioner to take the testimony of a witness on behalf of plaintiff in Bolivia.
Chas. A. Deshon, for app’lts; E. P. Johnson, for resp’t.
This is an appeal from an order granting •a commission upon the ground that the commissioner named is an improper person.
The only suggestion upon which is based the impropriety of his selection is that his name was suggested by the witness. That the commissioner has any relations with the plaintiff or the witness is not shown; and the plaintiff’s attorney frankly told defendants that the name had been suggested by the witness. Without something more substantial than mere suspicion, in view of the difficulty in getting a commissioner, we do not think the order should be interfered with.
The order should be affirmed, with ten dollars costs and disbursements.
Patterson and O’Brien, JJ., concur.