Opinion
February 21, 1908.
Martin L. Stover, for the appellant.
Benno Loewy, for the respondent.
This is an appeal from an order granting a motion for a commission to examine a witness on behalf of the plaintiff in the State of California. From the facts that appeared in the moving papers the plaintiff was entitled to the order, the claim of the defendant being that she was executrix of the decedent against whom the claim was presented; had no knowledge of any contract between the plaintiff and her testator; that the witnesses that were to be examined were hostile witnesses, and that it was quite impossible for her to frame cross interrogatories, and she, therefore, asked that an open commission issue. In view of this condition the court might well have allowed the defendant to cross-examine the witnesses orally, but such right does not seem to have been asked for, the demand being that the testimony should have all been taken under an open commission, which was not necessary so far as the direct interrogatories were concerned. It was stated on the argument of this appeal that the commission has been returned duly executed, and it can be ascertained whether the further cross-examination of the witnesses is required.
The order should, therefore, be affirmed without prejudice to an application by the defendant to the Special Term for leave to issue a new commission to orally cross-examine the witnesses if it should appear after an examination of the testimony as taken in the commission returned that such cross-examination is necessary. No costs of this appeal.
PATTERSON, P.J., LAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order affirmed, without prejudice to application, as indicated in opinion. Settle order on notice.