p. 892Clare A. Benedict, Resp’t, v. Milton T. Richardson, App’lt.(Supreme Court, General T&rm, Fifth Department,Headnote
1. Depositions — Commission—Suppression.Where a commissioner returns his original commission in pursuance of the directions contained therein, although not fully executed, and the same is duly filed, he no longer possesses any power to act as a commissioner to take testimony outside of this state; and where he undertakes to do so, the deposition so taken is properly suppressed.
Where it does not appear distinctly when the deposition was filed, but the motion to suppress it is made before any term of the court at which the case might have been tried, no laches can be imputed to the moving party.
Appeal by the defendant, Milton T. Richardson, from an order of Monroe special term, granted and entered October 81, 1892, suppressing a deposition of one Emma C. Benedict, the wife of the plaintiff, purporting to have been taken in Chicago on commission.
C. Doremus, for app’lt; Abraham Benedict, for resp’t.
By stipulation an order was made, at the instance of the defendant’s counsel, in June, 1891, directing that a
p. 893commission issue to a person named in Chicago, to take the depositions of nine witnesses, one of whom was Emma C. Benedict, upon interrogatories annexed to the commission. A commission in pursuance of such order having been issued, the commissioner proceeded to take evidence in Chicago, and did actually take the depositions of six witnesses, but not that of Emma C. Benedict. These depositions were returned with the original commission, and properly filed with the clerk of Monroe county on the 21st day of September, 1891.
Subsequently and without any further authority conferred upon the commissioner, the latter proceeded on the 31st day of May, 1892, to take the deposition of Emma C. Benedict. It does not appear clearly when such deposition was filed.
The order suppressing this deposition under § 910, upon the .ground that it was improperly and irregularly taken, was correct and should be affirmed. When the commissioner returned his original commission, in pursurance of the directions contained therein, and the same was filed with the county clerk of Monroe -county, the proper custodian thereof, .he no longer possessed any power to act as a commissioner to take the testimony outside of the state of New York to be used in this state.
We do not think that laches can be imputed to the plaintiff in not making this motion earlier; for it does not appear distinctly when the deposition so irregularly taken was filed with the county -cleric But the motion was made before any term of the court at which the case might have been tried, and consequently the defendant could not be prej udiced by the brief delay.
The order appealed from should be affirmed.
Order appealed from affirmed, with ten dollars costs and disbursements.
Dwight, P. J., Lewis and HIaight, JJ., concur.