Opinion
May Term, 1900.
Marshall B. Clarke, for the appellant.
Samuel R. Taylor, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, INGRAHAM and HATCH, JJ.
The notice of motion in this case asked for a re-execution of a commission directed to a party in Cros Schonan, in Saxony, for the reason that he had failed to answer certain cross-interrogatories. The affidavit upon which the motion was based specified such fact, and certain questions and answers which form a part of the deposition were set out and form a part of this record. No affidavits were read in opposition. The court denied the motion and made an order that all questions as to the sufficiency, responsiveness or relevancy of the plaintiff's answers on cross-examination under said commission be and are hereby reserved to be disposed of on the trial of the issues in this action.
It is, therefore, apparent that the defendant did not obtain the relief for which he moved, and the plaintiff is presently unable to tell whether he has a commission or not. The motion to re-execute is properly made before trial, and questions relating thereto are not permitted to be raised at the trial. (Code Civ. Proc. § 910; Union Square Bank v. Reichmann, 9 App. Div. 598.)
By the reservations made in the order, it is impossible to say whether the court will suppress the commission, or whether it will strike out the part of which complaint is made, or whether it will permit the deposition to stand and to be read as it stands. The plaintiff is entitled to know before the trial whether he is to have the benefit of his commission or not, and as this order leaves this matter in an uncertain state upon this point, it should be reversed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements.