Wainwright v. Low — 56 N.Y. Sup. Ct. 283

Majority

p. 283

CHARLOTTE WAINWRIGHT, Respondent, v. WILLIAM G. LOW and THE SAILOR’S COFFEE-HOUSE (Limited), Appellants.

Headnote

Power of the court to impose as a condition to the granting of a commission that the ■ witness, a party to the action, residing in a foreign country, be subject to an oral-examination.

The court has power to annex such conditions to an order allowing a commission, to issue for the examination of a party in his own "behalf, as shall require that the-witness be subjected to an oral cross-examination; nor is such pqwer limited, where the witnesses reside in a foreign country, by section 895 of the Oode of Civil Procedure.

Appeal by tbe defendants from so much of an order, entered in tbe office of tbe clerk of Kings county, as denied tbe application of tbe defendants to cross-examine, orally, tbe witnesses to be examined upon tbe commission to be issued on tbe application of tbe plaintiff, upon tbe ground that tbe court bad not authority in this. case to provide for sucb oral examination of witnesses to be produced.

Tbe motion was made for a commission to take tbe testimony of tbe plaintiff and two other persons m Sheffield, England. Tbe defendants asked leave to cross-examine said witnesses orally, yvhich request tbe justice denied on tbe ground of a want of power, referring to section 895 of tbe Oode of Civil Procedure and made an order directing that tbe commission issue in tbe usual form.

Wm. Q. Row, for tbe appellants.

Ten Eyek c& Remington, for tbe respondent.

Commissions to examine witnesses upon interrogatories are to' be granted upon “sucb terms as justice requires.” (Code Civil Procedure, § 889.) These terms may well be, in a proper case, that tbe witnesses shall be subjected to an oral cross-examination. Tbe court has, therefore, power to annex sucb a,, condition to tbe order-allowing tbe commission, and where a party is to be examined in bis own behalf, a proper case would seem to be presented. To bold that section 895 deprives tbe court of tbe powerto annex sucb condition in a proper case would involve, as a consequence, that tbe.

p. 284

interests of infants, idiots and lunatics, whose rights depend upon the same section, are to be visited with an additional disability, in that the law does not grant them the protection it accords to other parties. In the present case, as witnesses are to be examined at the residence of the plaintiff, no hardship to her can be apprehended.

Order appealed from modified by allowing the witnesses to be ■cross-examined orally.

Barnard, P. J., and Dykman, <T., concurred.

Order modified by allowing an oral cross-examination.