Bliss v. Hornthall — 67 N.Y. St. Rep. 887

Majority

p. 887

Cornelius N. Bliss et al., Resp’ts, v. Lewis M. Hornthall, Impleaded et al., App’lt. Clement A. Auffmordt et al., Resp’ts, v. Same, App’lt. Thomas A. Wicher et al., Resp’ts, v. Same, App’lt.

(Supreme Court, General Term, First Department,

Filed May 17, 1895.)

Headnote

Deposition — Commission.

An open commission will not he refused for the reason that the testimony has been taken upon an open commission in an action brought by another plaintiff against the defendant involving the same issues, upon which defendant was represented by counsel and had the opportunity to cross-examine the witnesses, unless he consents that the testimony so taken may be read on the trial of the present action.

Appeal from orders granting plaintiffs’ motion for open commissions herein.

John V, Bouvier, Jr., for app’lt; Charles E. Hughes, for resp’ts.

The strongest argument against an open commission is that, with the names of the witnesses and the knowledge to be derived from the open commission taken in the case -of Baily v. This Defendant (now on file), plaintiffs are in a position to formulate the necessary interrogatories. If, however, the labor of framing numberless interrogatories can be avoided, it should be. The defendant, by permitting the testimony already taken to be used upon the trial, subject to all proper objections, can avoid a commission, either open or upon interrogatories. Without passing upon the question whether, in such a case as this, an open commission should be issued, we think, upon the fact appearing that one has been issued by consent in a case between another plaintiff and this defendant, involving practically the same issues, upon which defendant was represented by counsel, and had the opportunity of cross-examining the witnesses, that unless he consents to the reading of the testimony so taken he has no just subject of complaint. There is no claim made that the former examination was not proper and fair and exhausive, nor is any good reason given why the testimony so taken could not be used.

The orders should be affirmed, with $10 costs and disbursements.