Hemenway v. Knudson — 57 N.Y. St. Rep. 127

Majority

p. 127

Charles P. Hemenway et al., App’lts, v. Morris F. Knudson et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed November 17, 1893.)

Headnote

Evidence—Commission.

A commission to take depositions cannot be granted unless the names' both of the commissioners and the witnesses are given, though they are unknown and cannot, by reasonable diligence, be found.

Appeal from portions of an order granting a commission to take depositions.

Geo. A. Black, for app’lts; William M. Ivins (John S. Melcher, of counsel), for resp’ts.

The orde.r in this case provided— First, for the return to Corvis M. Barry, United States consul at Valparaiso, Chili, or to the officer exercising the functions of consul at that place, of a commission which had been theretofore partly executed; second, for the issuing of a commission directed to J. Y. Merriam, United States consul at Iquique, Chili, or to the officer exercising the functions of consul at that place, as commissioner to examine, on oath, upon written interrogatories to be annexed thereto, T.

p. 128

other representative of the firm of James Ingles & Co., whatever his name, etc., and of John Doe, as a witness to certain facts, and also Richard Roe and Thomas Smith, as witnesses to certain -other facts, all of whose names were unknown to the plaintiffs. The defendants appealed from this order upon the .ground that the commissioners are not named, and that the ■commission of Iquique is to examine certain witnesses, whose true names are not given.

It is urged that the statute in regard to commissions should have ■a reasonable construction, and that witnesses may be examined, -though not named, provided the application shows that their names -are unknown, and could not, .by reasonable diligence, be ascertained, and identifies them in a proper manner; and it is claimed by the respondents that certain authorities support this proposition. But, as the authority of the court to award a commission depends solely upon the statute, it is beyond the power of the court to interpolate into the statute that which has been carefully excluded. By § 887 of the Code, it is provided when a commission may issue. The language of the -section is as follows:

“ A commission may be issued to one or more competent persons named therein authorizing them or any one of them to examine the witness or witnesses named therein under oath, upon the interrogatories annexed to the commission.”

This language is too plain for construction. The commissioners must be named, and the witnesses must be named, if the commissioh is to be upon written interrogatories, as in ,the case at bar. It follows, therefore, that these mythical commissioners and mythical witnesses cannot have authority conferred upon them, either -to act or to testify, by the order of the court appealed from, The •order should be reversed in the respects appealed from, with $10 •costs and disbursements.

All concur.