Mitchell v. Montgomery — 6 N.Y. Super. Ct. 676

Majority

p. 676

Mitchell v. Montgomery.

Headnote

In exercising the discretion of the court as to issuing commissions to tafce testimony, the court will not allow one to issue, where the object is to procure cumulative testimony on a point on which there was conflicting evidence at a former trial, and the expense of executing the commission will exceed the amount involved in that point.

November 15, 1851.

Motion by tbe defendant for a commission to examine a witness in California. Tbe claim in suit was for demurrage of a ship. The causé was once tried and the plaintiff recovered for nine days demurrage at fifty dollars a day. The court, on a case made, granted a new trial, unless the plaintiff would reduce his verdict to fifty dollars, which he declined to do. The cause was again noticed for trial.

II. D. Sedgwiclc, for the defendant.

W. M. Evarts, for the plaintiff.

(with the concurrence of all the Justices.)— The defendant has sufficiently accounted for his omission to examine this witness conditionally or on the former trial, and for the delay in making this application. But it appears the witness is expected to testify to a point on which, there was conflicting evidence on the trial. We consider it a dangerous practice to issue a commission for such a purpose ; a practice we are not at all disposed to encourage, though we will not say that there may not be a case in which it would be proper. Here, so far as this witness is concerned, the whole controversy is respecting two days demurrage at fifty dollars a day. The granting of a condition is discretionary; and under the circumstances stated, with the fact that the expenses of both parties in executing it will greatly exceed the sum to be influenced by the testimony, we think the cause should not be delayed to examine the witness.

Motion denied.