Hyperlawhypertext legal database McMonagle v. Conkey 21 N.Y. Sup. Ct. 326

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McMonagle v. Conkey

21 N.Y. Sup. Ct. 326 Court N.Y. Sup. Ct. English

Judges Present — Learned, P. J., Boardman and Tarpan, JJ.

Contents

Majority

p. 326
PETER R. McMONAGLE, Respondent, v. CHARLES N. CONKEY, Administrator, etc., Appellant.

Headnote

Commission- to examine party on Ms own behalf — not granted when plaintiff is a fugitive from justice and cannot come into this State for that reason.
• Appeal from an order granting a commission to examine the plaintiff as, a witness in his own behalf.
p. 327
The court at General Term said: “Under the peculiar circumstances of this case we do not think that the plaintiff should have a commission to examine himself.
“ The case is referred to a referee residing in Ogdensburgh. The plaintiff is in Prescott, Canada, which place is opposite Ogdensburgh, and only about a mile and a half distant therefrom. The plaintiff is a fugitive from justice, having gone to Canada to escape trial on an indictment found against him in this State. He is therefore unwilling to submit to the authority of our courts. And he refuses to come into this State to testify on his own behalf in the present case.
“We think that in the exercise of a sound discretion the commission should not be granted.”
Order reversed with $10 costs and printing.
Leslie W- Russell, for the appellant.
Vary <& Stone, for the respondent.

Opinion by

Present — Learned, P. J., Boardman and Tarpan, JJ.

Order reversed with $10 costs and printing, and motion for commission denied.