Shaffer v. Wilcox — 2 N.Y. Super. Ct. 502

Majority

p. 502

Joseph Shaffer and Assur Assur versus Lewis Wilcox.

Headnote

Where a party, upon an affidavit, sets forth the facts which he wishes to establish; under a commission to a foreign country, and shows that those facts can only be proved by persons in the employment of his antagonist, whose names are unknown to him, the court will either permit the commission to issue generally without the names of the witnesses, or grant a stay of proceedings until their names can be ascertained.

Mr. J. Anthon, for the defendant,

moved that a commission which had been granted in this cause, to take testimony at Trieste, should issue generally, without the names of the witnesses to be examined, or that a stay of proceedings should be granted unlil.the plaintiffs would disclose the names of their clerks, in Trieste, who were the witnesses to be examined. He read an affidavit of the defendant, setting forth the facts which he wished to prove, and showing that the clerks of the plaintiffs, at Trieste, were the only witnesses who could give the information sought, as it related to their accounts. It appeared that one of the plaintiffs resided at New-York, and the'other at Trieste; and the defendant alleged, that the transactions out of which the controversy grew, took place at Trieste, and could only be proved by persons in the employment of the plaintiffs there, whose names were unknown to him.

Mr. Cutting, for the plaintiffs,

resisted the application, upon the ground that the act relative to commissions, [1 R. L. 519,] requires that the names of the witnesses should be inserted in the commission.

The act in question must have a reasonable construction. If a particular officer were to be examined, whose

p. 503

name was unknown, (the Attorney General of a particular state, for instance, whose testimony might be material,) the commission might be issued generally, to take the testimony of that officer, without inserting his name.

In this case,' the defendant wishes to examine the clerks of the plaintiffs’, at Trieste, whose names are unknown to him. He sets forth by affidavit the facts which he wishes to prove, and asks either for a general commission to take the testimony of those clerks, or for a disclosure of their names, or for a stay of proceedings, until they can be obtained from other sources. This is not a fishing commission, for the facts sought to be proved, are all disclosed. The application, on the contrary, is perfectly reasonable, and if the plaintiff, who resides here, will not disclose the names of his clerks, the defendant may either issue his commission generally, to take the testimony of the clerks at Trieste, or have a stay of proceedings until their names can be ascertained from other sources.

Motion granted.

[F. B. Cutting, Att'y for the plffs. E. Anthon, Att'y for the deft.]

Note.—The defendant, in the first instance, moved for a commission to examine certain individuals, whose names wore set forth';—but the plaintiffs showed that they were persons who were concerned in the transactions in controversy, and directly interested in the event of the suit. The court refused to allow the commission for this reason, and the defendant then made the application above described.