Darling v. Klock — 55 N.Y. St. Rep. 874

Majority

p. 874

Henry H. Darling, Resp’t, v. Daniel Klock, Jr., App’lt.

(Supreme Court, General Term, Third Department,

Filed December 6, 1893.)

Headnote

1. Depositions—Open Commission.

An order for an open commission should not he granted on the’ motion of a plaintiff without the strongest proof of its necessity, especially where its effect will probably be to compel the defendant to proceed with counsel to a distant state or territory, and remain for a considerable time, necessarily incurring great expense.

8. Same—Witnesses should be named.

The order for such a commission should limit the examination to witnesses residing in the state or territory where the commission is to be executed, or its vicinity, and should name or describe the witnesses.

p. 875

Appeal from order of the Hon. L. E. Griffith, Eensselaer county judge, directing that an open commission issue to “ Hon. A. E. Freeman, who is district judge, residing at Eddy, Socorro county, New Mexico, „to examine any witness who may be produced by either party on or before the 80th day of December, 1893, at a time and place within the territory of New Mexico, to be specified by written notice to the other party, upon oral questions to be put to the witness or witnesses when he is produced, as to the issues in this action, and to take a certified deposition of each witness, and return the same with the testimony according to law within the time specified; and it is further ordered that said commissioner insert in the deposition all the questions asked and answers given word for word; and it is further ordered that the said deposition be returned as follows: ”

Edwin Countryman (John H. Peck, of counsel), for app’lt; Lansing & Holmes, for resp’t.

An order for an open commission should not be granted on motion of the plaintiff, without the strongest proof of its necessity. Lentilhon et al. v. Bacon, 48 St. Rep., 864 . Especially in a case like this, where its effect will probably be to compel the defendant to proceed with his counsel to the distant territory of New Mexico, and remain for a considerable time, necessarily incurring great expense.

We think the order granted in this case should not be sustained. «

It authorizes the examination before the commissioner in New Mexico of any witness either party may produce. It does not name the witnesses or assume to describe them. Anyone from any part of the world may be examined. The plaintiff, under the order, could have all his testimony taken before the commissioner if he desired. The examination .should certainly be limited to witnesses residing in New Mexico or in that locality.

Also the witnesses to be examined, limited to persons residing in New Mexico, should be named or described. There are perhaps peculiar and extraordinary cases where an open commission may properly issue to examine unnamed or undescribed witnesses. See Jamison et al. v. Citizens' Savings Bank of Jefferson, Tex., 85 N. Y., 546 ; Jones v. White, 10 Abb. N. C., 324 . • We do not regard this as such a case. In Hart v. O. & L. C. R. R. Co., 67 Hun, 556 -60; 51 St. Rep., 468 , the witnesses to be examined were described as the “ present and past officers, agents and clerks of the companies,” etc. The case of Parker v. Lithgoe, 36 St. Rep., 981 , referred to by respondent, was a peculiar one, and is fully explained in Kemper v. Gorman,. 43 St. Rep., 800 . It cannot be deemed an authority to sustain the order granted in this case.

Perhaps the affidavit was sufficient to authorize a commission to issue providing for the examination of “ Mills ” and the past and present officers and servants of the “ Socorro Mountain Mining Co. or “ The Eio Grande Smelting Co.,” without naming those •officers or servants. But it goes further than that, and allows the

p. 876

examination of any other resident of Neto Mexico or any other part of the world. The order should have limited the examination to> witnesses residing in Hew Mexico or in that vicinity, and should have named or described the witnesses as in Hart v. O, & L. C. R. R. Co., supra.

The principal object of plaintiff in obtaining the commission seems to be to find witnesses rather than to examine them. His affidavit states : “ That owing to the peculiar circumstances in this case, plaintiff has been, and he verily believes will be unable to ascertain just who will be necessary witnesses for him to establish his side of the case, until some of the parties in the territory of Hew Mexico, implicated in and connected with the transactions set forth in -the complaint, have been examined,” etc.

He evidently does not know that there are material and necessary witnesses for him in Hew Mexico. On examination of parties in that territory, connected with the transactions set out in the complaint, it may turn out that there are no material witnesses there.

The order should be reversed, with costs and disbursements, and .the motion denied, with costs, but with leave to plaintiff to renew his motion.

Mayham, P. J.. and Herrick, J., concur.