Rathbun v. Ingersoll — 34 N.Y. Super. Ct. 211

Majority

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GEORGE W. RATHBUN, Plintiff and Respondent, v . DANIEL W. INGERSOLL, Defendant and Appellant.

Headnote

An order for a commission to examine witnesses with a stay of proceedings, although in a sense discretionary with the judge who granted it, is' reviewable by the general term. It affects a substantial right within subdivision 3 of section 349 of the Code, and under the authority of In Be Duff, 41 How. Pr. 350 , is appealable.

A referee has no power to issue a commission to examine witnesses. The court only can do this.

An order for a commission, although not an absolute right, has become almost a matter of course. When applied for and the applicant is not guilty of laches, a stay of proceedings is also usually granted, but where much time has elapsed, very satisfactory excuse is required, and the party must make out so strong a case (not only excusing . the laches but also of the necessity and materiality of the evidence sought), as will remove the natural suspicion of bad faith (Forrest ». Forrest, 3 Boaw. 666).

A party has no right to rest upon an expectancy that foreign witnesses would attend. In view of the comprehensive powers of referees on the trial of actions, the court should use its powers of restraint with great discretion and caution, and should not interrupt nor stay a trial except in a clear case of necessity, and only' when substantial justice requires it.

Before Barbour, Ch. J., Monell and Freedman, JJ.

Decided March 2, 1872.

Appeal from an order for a commission to examine witnesses, with a stay of proceedings.

The action was commenced in April, 1866, and was pending before a referee, with numerous meetings and much testimony taken, until July 25, 1871, when the evidence was declared by the referee closed on each side, and the trial adjourned to September 7, for summing up. On July 18, the motion by the defendant

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for a commission was noticed, and adjourned from time to time to September 7, when it was dismissed on failure of the defendant to appear. The default was subsequently opened, and the motion for a commission with a stay, granted.

The day for summing up was adjourned to September 11, on the defendant’s motion, on condition that he within ten days pay referee’s fees for all adjournments made at his request. Such fees had not been paid.

By December, 1870, the plaintiff had put in all his evidence, and the trial was continued by repeated adjournments to May 6, 1871, when the defendant began taking testimony and continued three days, and the further trial was then adjourned to July 24. The defendant failed to appear, and on the next day, the referee closed the evidence.

The only affidavit,- touching the merits of the motion, was made by one of the defendant’s attorneys, who stated: “That after the plaintiff had aguin rested his case, the said motion to dismiss was renewed and was denied, and in May, 1871, the defendant- opened his case, and intended and expected to examine six witnesses, all of whom reside in Minnesota. That two of said witnesses were produced and examined before said referee here in New York, and defendant was led to believe, and did expect that the other four witnesses would appear and be examined orally and personally, but to his disappointment it has been found impracticable to procure their personal attendance. That deponent has been informed by said defendant what he expects to prove by each of said witnesses, and believes such information to be true, and communicated in good faith; and that the testimony of each and every of them is material and necessary for said defendant on the trial of this action, as deponent had advised said defendant, and as deponent verily believes. That deponent has delayed the procuring of the testimony of

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said witnesses till the present time, solely because he calculated and depended, down to a late day, on their willingness to come and render their testimony here ; and another more recent cause of such delay, is that for the last four weeks deponent’s health has been so bad, that he has been confined to his house, and unable to any considerable extent to give attention to his legitimate business, and that none of his law partners have any conversance with the case, the trial having been wholly under the charge of deponent.”

The plaintiff appealed.

Mr. H. Z. Hayner, for appellant.

Mr. Knox, for respondent.

The order, although in a sense discretionary with the judge who granted it, is reviewable by the general term. It affected a substantial right, within subdivision 3 of section 349 of the Code, and is, therefore, under the authority of In Re Duff, 41 How. Pr. 350 , appealable.

The power of a referee in respect to the ordinary incidents of a trial are the same as the court. He can grant or refuse amendments of pleadings, or conform the pleadings to the facts. He cam compel the attendance of witnesses, and is authorized to grant adjournments from time to time, to suit the convenience of parties or witnesses.

A referee, however, has no power to issue a commission to examine witnesses out of the State, nor can he compel the attendance of such witnesses. The court only can allow the issuing of a commission.

The granting óf a commission, although not an absolute right, has become to be almost a matter of course; and when applied for without laches or unreasonable "delay, is usually accompanied by a stay of

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proceedings for such reasonable time as may be required for its due execution.

Where much time, however, has elapsed, very satisfactory excuse for the delay is required ; and the party applying must make out so strong a case, not only excusing his laches, but of a necessity for the evidence, as will remove the natural suspicion of bad faith (Forrest v. Forrest, 3 Bosw. 666 ).

And where the trial has been going on, as in this case, for nearly two years, the party should be required, besides excusing the delay, to disclose the nature of the evidence he expects to obtain.

It is probable that no case like this has arisen, when a motion for a commission, 'and a stay of all other proceedings, has been granted, after the evidence has been closed. Indeed, not even after the trial has been begun. The court of course has the power, but I do not know a case where it has been exercised.

The reason for the delay in procuring the evidence of these foreign witnesses is not satisfactory to me. It is that it was expected they would personally attend.

The defendant has no right to rest upon such an expectancy. He, or Ms counsel, knew that such an attendance would be wholly voluntary and could not be compelled ; and if he took the risk of a disappointment, he should be made to take the consequences of the failure.

Besides, he is in default. He has not complied with the condition annexed to the order opening the proofs, and he • is, therefore, shut out from giving further testimony.

In view of the comprehensive powers of referees, on the trial of actions, the court should use its powers of restraint with great discretion and caution ; and should not interrupt or stay the trial, except in a clear case of necessity, and only when substantial justice reqmres it.

I think so much of the order as allows a commission and stay of proceedings should be reversed with costs.

Cases cited

In re Duff 41 How. Pr. 350 N.Y. p. 211, p. 213