Bliss v. Hornthal — 94 N.Y. Sup. Ct. 110

Majority

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Cornelius N. Bliss and Others, Respondents, v. Lewis M. Hornthal, Appellant, Impleaded with Others. Clement A. Auffmordt and Others, Respondents, v. Lewis M. Hornthal, Appellant, Impleaded with Others. Thomas A. Whicher and Others, Respondents, v. Lewis M. Hornthal, Appellant, Impleaded with Others.

Headnote

Open commission 'issued when there is a refusal to admit depositions taken under a Wee commission in another action.

On appeal from an order granting a motion made by a plaintiff for an open commission, it appeared that an open commission was issued by consent in another' action between another plaintiff and the same defendant, involving practically the same issues, upon the execution of which the defendant was represented by counsel, and had an opportunity of cross-examining the witness, and that the defendant by permitting the testimony, already taken in such other action, to be used upon the'trial of the action in question, subject to all proper objections, could avoid a commission either open or upon interrogatories.

Reid, that the defendant (by refusing to consent to the reading of such testimony so taken) had no ground of complaint against an order granting the plaintiffs motion for an open commission, there being no claim made that the former examination was not proper and fair and exhaustive, and no good reason being given why the testimony so taken could not be used.

Appeal by the defendant, Lewis M. Horntiial, from three several orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1895, granting the several plaintiffs’ motions for the issuance of open commissions unless the appellant stipulate that certain depositions taken in an action brought by another plaintiff against the appellant with the exhibits thereto attached or therein referred to might be read in evidence on behalf of the plaintiffs in the present actions upon the trial thereof, except that the deposition of no one of such witnesses who might be personally present at the trial of the action should be read.

John V. Bouvier, Jr., for the appellant.

Charles E. Hughes, for the respondents.

The strongest argument against an opien commission is, that with the names of the witnesses and the knowledge to be derived from

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the open commission taken in the case of Bailey against 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 lias no just subject of complaint. There is no claim made that the former examination was not proper and fair and exhaustive, nor is any good reason given why the testimony so taken could not be used.

The orders should be affirmed, with ten dollars costs in each case and disbursements.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Orders affirmed, with ten dollars costs in each case and disbursements.