Walton v. Godwin — 61 N.Y. Sup. Ct. 387

Majority

p. 387

FRANK WALTON, Respondent, v. PARKE GODWIN, Appellant.

Headnote

Interrogatories to a commission to examine a witness — 'when so clearly irrelevant as to he disallowed.

Although, as a general rule, all interrogatories which may he propounded under a commission for the examination of a witness should he allowed, leaving the question as to the admissibility of the evidence to he determined at the trial, where it can he much better and more intelligently done than upon the settlement of the interrogatories, yet where an interrogatory is clearly irrelevant, and is apparently put for the purpose of eliciting information in no way connected with any issue presented by the pleadings in the action, such interrogatory should not he allowed.

Appeal by tbe defendant from order entered in tbe clerk’s office of tbe county of New York, July 2,1889, allowing certain cross-interrogatories to be attacked to a commission to be issued for tbe examination of Jacques Bouby a witness for defendant.

Welson Smith, for tbe appellant.

W. W. Badger, for tbe respondent.

Although it is true that tbe general rule is to allow all interrogataries wbieb may be propounded under a commission, leaving tbe question of tbe admissibility of tbe evidence to be determined at tbe trial where it can be much better and more intelligently done than upon tbe settlement of tbe interrogatories, yet where an interrogatory is clearly irrelevant, and is apparently put for tbe purpose of eliciting information in no way connected with any issue presented by tbe pleadings in tbe action, such interrogatory should not be allowed. Applying this rule to tbe .interrogatories now before tbe court and which are put by tbe plaintiff by way of cross-examination, it would appear that no error was commited in tbe allowance of tbe eighth, ninth and the fli’st paragraph of tbe tenth. There were issues presented which related to the good faith of tbe opera company in tbe charge of plaintiff’s assignment, and also to tbe truth of the statements contained in tbe report signed by tbe defendant as to tbe assets of tbe opera company, and these interrogatories were

p. 388

pertinent to these issues. The last clause of the tenth interrogatory and the whole of the fourteenth seem to be improper. The fourteenth in no way tended to elicit any evidence in any way connected with the issues presented in this action, but seems to have been put for the purpose of procuring information which might affect other claims which had been or might be presented against the signers of the report in question.

The order appealed from should be modified, disallowing the last clause of the tenth interrogatory and the whole of the fourteenth, and as so modified affirmed, without costs.

Beady and Daniels, JJ., concurred.

Order modified, as stated in opinion and as so modified affirmed, without costs.