Grissen v. Southworth — 46 N.Y. St. Rep. 1

Majority

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Frances E. Grissen, Resp’t, v. Ruth L. Southworth, Ex’rx, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

Depositions—Commission—Waiver.

A failure to take the testimony under an open commission by question and answer, word for word, is an irregularity only, and may be waived by the parties by proceeding before the officer in a different manner than that provided by the commission.

Appeal by the defendant, Euth L. Southworth, executrix of the last will of Mortimer M. Southworth, deceased, from an order of the special term of the supreme court, held in Niagara county on the 22d day of April, 1892, suppressing the deposition of Mary Lyon, a witness for the defendant, taken under a commission which was issued at the instance of the defendant.

Charles Hickey, for app’lt; W. H. Hanson, for resp’t.

A motion in behalf of the defendant was made and granted for the examination of the witness named at Ovid, in the State of Michigan, upon oral questions to be administered under the direction of Byron Y. Soule, a counsellor at law, as commissioner. Such examination was had, and the testimony of the witness was properly returned by the commissioner, and filed with the county clerk of Niagara county on the 30th day of March, 1892. On the 13th day of April, 1892, the plaintiff served a notice of motion for the 22d day of that month to suppress such commission, upon the ground that the testimony of the witness was not taken by question and answer, word for word, as is permitted by § 900 of the Code of Civil Procedure, and as was directed by the commission itself.

This section of the Code directs, among other things, that the commissioner must “ take down, or cause to be taken down, etc., the substance of the witness’ testimony, unless he is directed in the commission, or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word.” The direction in this instance, as contained in the commission, was that the testimony of this witness be taken by question and answer, word. for word. In respect to a considerable portion of the testimony of the witness this direction was not observed ; and, consequently, this motion

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to suppress the commission, being made within a reasonable time ’ after the same was filed with the clerk, was properly granted, unless the irregularity was waived by the parties. It appears that at the taking of the deposition the plaintiff and defendant were respectively represented by counsel who conducted the examination. The counsel for the plaintiff is shown to have been employed not only for this special occasion, but that he was her general counsel regularly employed. He, with knowledge of the manner in which the commissioner wrote the testimony, made no objection thereto, and hence presumably the commissioner acted with the consent and concurrence of both parties. We are accordingly of the opinion that the omission to object to the course pursued by the commissioner was a waiver of the direction contained in the commission. In the absence of such direction or request made at the taking of the deposition, the usual course to be pursued by the commissioner, contemplated by the statute, was to take the testimony in a narrative form. A failure to take it by question and answer, word for word, is an irregularity only, and may be waived by the parties by proceeding before the officer in a different manner than that provided by the commission.

It follows that the order appealed from should be reversed, and the motion denied, with costs.

Order appealed from reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with ten dollars costs.

Dwight, P. J., Macohber and Lewis, JJ., concur.