Goldmark v. Metropolitan Opera House Co. — 51 N.Y. St. Rep. 460

Majority

p. 460

Leo Goldmark, Resp’t, v. The Metropolitan Opera House Co., App’lt.

(Supreme Court, General Term, First Department,

Filed February 17, 1893.)

Headnote

Depositions — Suppression of.

Where it is apparent on examination of the answers of the witness to the cross-interrogatories that he has knowingly and willfully refused to fully and fairly answer the questions propounded, it is the duty of the court to suppress the deposition.

p. 461

Appeal from an order denying a motion to suppress the deposition of Paul de Choudens, taken at Paris, France, before the United States consul general, under a commission issued in this action.

Olin, Rives & Montgomery (George Austin Morrison, Jr., and Stephen H. Olin, of counsel), for app’lt; J. M. Dittenhoefer, for resp’t.

It is apparent from an examination of the answers of the witness to the cross-interrogatories that there was a deliberate refusal to fairly and fully answer the questions propounded ; and this, not by way of mistake, but willfully, and with knowledge that the answers were not as full and complete as required. Under these circumstances we think it is the duty of the •court to suppress the commission, and to leave the party who desires to avail himself of the testimony of the assignor of his claim to such relief as he may procure upon an application for a new commission at the special term.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to suppress the commission granted, with ten dollars costs.

Yak Brukt, P. J., O’Briek and Follett, JJ., concur.