Kaempfer v. Gorman — 43 N.Y. St. Rep. 800

Majority

p. 800

Adolph Kaempfer, Resp’t, v. John J. Gorman, Sheriff, App’lt.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Depositions—Open commission.

An open commission should not be granted except under exceedingly peculiar circumstances, and not because it is more convenient or considered desirable by the moving party. The mere fact that the proposed witnesses are hostile and therefore the party desires to examine them orally is not a sufficient ground to authorize the granting of such a commission.

p. 801

Appeal from order denying motion for open commission.

A. L. Jacobs, for app’lt; B. Loewy, for resp’t

It is apparent that an open commission ■should not be granted except under exceedingly peculiar circumstances, because by such a commission frequently the place of trial, is virtually transferred to a foreign jurisdiction.

The papers in this case present no special reasons for the granting of such extraordinary relief, except the fact that the witnesses proposed to be examined are hostile to the defendant, and that, therefore, it is necessary to examine them orally.

Where a party is called upon to justify against a trespass committed within this state, we do not think that the plaintiff should be required to attend by counsel the taking of testimony in another ••state, and that the ordinary means of taking the testimony of witnesses should be resorted to and not an open commission.

The case of Parker v. Lithgoe, 36 St. Rep., 981 , is cited as an .■authority to support the application in question. Upon an examination of that case it will be seen that it is no authority whatever for the contention of the defendant. It is simply in harmony with the cases of Clayton v. Yarrington, 16 Abb. Pr., 273 , and Anderson v. West, 9 Abb., N. S., 209. In the case of Parker v. Lithgoe a commission had been ordered and an appeal taken from the order granting the commission. The court was of opinion that the commission should issue, but they gave the right to the opposite party, if they desired, to have an open commission in ■order that they might produce such witnesses as they chose and ■examine them orally. If they did not desire ah open commission they were under no necessity to accept it, and if the respondents did not desire that the defendant should have this privilege then the appellants could not get it unless they persisted in their motion for a commission.

In the other cases cited leave was given to cross-examine witnesses orally where a commission had been issued, and that was all.

It will thus be seen that the question as to the oral examination of witnesses has in all cases depended upon the desire of the party moved against; and this court at least has not ordered any such commission simply because it was more convenient and considered ■desirable by the party moving.

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

O’Brien and Patterson, JJ., concur.