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Voss v. Fielden

4 N.Y. Super. Ct. 690 2 Sandf. 690 Court N.Y. Super. Ct. Decision date 1850-02-09 English

Delivered by Oakley, Ch. J.

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p. 690
Voss v. Fielden.

Headnote

Where sufficient time has elapsed, prima facie, to have obtained the return of & commission, issued with a stay of proceedings, the stay will be vacated on motion of the adverse party ; and on the cause being called for trial, the party taking; the commission must establish the grouuds for a further stay, if there be any, for the return of the commission.
February 9, 1850.
The facts appear in the decision, which was made by the Chief Justice, after advising with two of his associates.

In October 1848, the defendant obtained a-commission, with a stay , of proceedings, to examine witnesses at Buenos Ayres. The plaintiff now moves for leave to proceed to-trial. By advices received in October last, there is reason to-think that some progress has been made in the examination; and affidavits are produced by the defendant, tending to show that there has been no unreasonable delay. The plaintiff claims that he ought to have an opportunity to meet the allegations in these-affidavits, and that the defendant ought to move for a further' stay.

On considering the matter, we think the rule ought to be, that the parties in a case like this have liberty to go to trial at the-next term. If the commission be not then returned, it will be-incumbent on the other party to apply for a further stay. This will give to the party desiring to go to trial, an opportunity to-

p. 691
answer the statements on which his adversary relies for continuing the stay of proceedings and obtaining further time to procure >the testimony.

Such will be the practice in future, where it appears that sufficient time, prima facie, has elapsed, for the execution and «return of the commission.