Froude v. Froude — 8 N.Y. Sup. Ct. 76

Majority

p. 76

HORACE B. FROUDE, Appellant, v. EMILY L. FROUDE, Respondent.

Headnote

Commission rogaiov.y.

The plaintiff applied to the court for a commission to he issued to the French courts, to enable him to examine two witnesses orally, on the ground that one of the witnesses had already been examined on commission, and, as he claimed, testified falsely, and that he feared the other would do so. Held, that the application was properly denied. The mode of taking testimony abroad, is established by the Revised Statutes, and it is not to be departed from, unless the court cannot otherwise obtain the testimony.

Appeal from an order ■ denying an application made by the plaintiff for a commission rogatory, to take the testimony of two

p. 77

witnesses residing at Nice, in France. The facts are stated in the opinion.

Ohas. E. Whitehead, for the appellant,

cited Lumley v. Gye (3 Ellis & Black., 114); Clay v. Stephenson (7 Ad. & Ellis, 185); Boelen v. Melladew (10 Com. Bench, 898); Ponsford v. O'Connor (5 Mees. & Wels., 673); Fisher v. Izatary (1 El., Black. & El., 321); Pole v. Rogers (3 Bing., N. C., 780); Nelson v. The U. S. (Peters’ C. C. R., 235).

Jos. Laroeque, for the respondent.

In this case, the plaintiff applied to the court below, to allow him to examine two witnesses abroad, under a commission to be issued to the French courts, at the place of residence of the witnesses, to procure such examination orally; the reason given, being that one of the witnesses had already been examined, and, as claimed, testified falsely, and the other, it is apprehended by the plaintiff, would do so. The court below denied the application, and from that order the plaintiff appealed. I think the court below was right. The Revised Statutes^[4] fix the mode of taking testimony abroad, and the cases cited by the plaintiff, as well as defendant, establish the rule that this is not departed from, unless the court cannot otherwise get the testimony. Lincoln v. Battelle^[2] is a case in point.

The cases cited from the English reports, must be viewed in the light of the English rule, which has always been averse to taking testimony except in presence of the parties, and has always appéared to excuse itself when adopting testimony taken in any other way. Hoffman’s Chancery Practice lays down the rule, as practiced here in equity cases.^[3] To adopt the cumbrous and expensive rule of the English courts on this subject, or open commissions, would be to subject parties to disastrous delays and expenses. If the rule were adopted, whenever a party thinks his testimony could be better taken by such commission, he could

† † 6 Wend., 475 .

‡ ‡ Page 481.

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have it. His opponent would, at his peril, have to accompany them, and perhaps find, when he had gone to such country as his opponent desired to send him, and had incurred the expense of employing counsel, that no witnesses were produced. Again, to adopt this system, would be to subject all our causes to the rules of evidence and mode of examination under the laws of each particular country to which the commission yould go.

In this case, the facts show that no difficulty exists in obtaining the execution of a commission in our own form; it has been done in this case, and no pretense exists that it cannot be done as to the other witness. The mere statement that they expect in this way to get different testimony, is not enough.^[4] Should the witness, already examined, testify differently, the testimony would be worthless, and, as to the other, such fact is not to be presumed.

Again,, it is a question, in the absence of all settled form of taking the testimony in our courts, whether we are prepared to sanction the mode of taking testimony, adopted in some cases, under the civil law.

The order appealed from should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.

* 1 Barb. S. C. R., 220.

Footnotes

* Part 3, chap. 7, title 3, art. 2.