Opinion
May, 1907.
Present — Ingraham, Laughlin, Clarke, Scott and Lambert, JJ.
The order appealed from should be reversed and the motion for an open commission granted, with ten dollars costs and disbursements of the appeal and ten dollars costs of motion to the appellant to abide the event of the action unless plaintiff files a stipulation within five days after the service of the order to be entered hereon that it will produce the witnesses Nichols and Austin for examination by the defendant upon the trial of the action, and that it will also produce the books and papers specified in the affidavit of the defendant necessary for the proper examination of said witnesses upon the trial. In the event that the plaintiff makes such a stipulation and the witnesses or the necessary books and papers are not produced the trial shall be adjourned pending the issue and execution of a commission. The defendant may then renew this application at the Special Term for a commission. If such stipulation is filed the order appealed from is affirmed, without costs.
Order reversed and motion for open commission granted, with ten dollars costs and disbursements of appeal and ten dollars costs of motion to appellant to abide event unless plaintiff stipulates as stated in opinion.