131 N.Y.S. 536 | N.Y. App. Div. | 1911
The depositions which have been suppressed were taken in the months of September, and October, 1910, before Frank H.
The motion for the suppression of the depositions was made by the defendant on five grounds: (1) That three of the witnesses, namely, Samuel Einhorn, Jacqites Kulp and Ernest May, severally, deliberately refused to produce certain documents called for by the cross-interrogatories, and necessary to render their depositions complete and competent; (2) that said three' witnesses deliberately refused to answer fully certain cross-interrogatories; (3) that “the plaintiff and the witnesses were allowed to have.counsel while under examination, whereas the1 defendant was unahle to ascertain before whom the commission would'be executed or to be present thereat, and the commission ■ was unfairly executed;” (4) that the commission was not addressed to or returned by a person named in the order, and was not executed and returned by the person to whom it was addressed; and (5) that it was executed before and returned by a commissioner not named in the commission. There is no merit in the fourth and fifth grounds of the motion. In the original order, in force at the time the commission was issued and the depositions were taken, the .designation of the commissioners to take the-same was as follows: “the. Consul General, or Vice Consul General, or Deputy Consul, or Deputy Vice Consul, of the United States at Paris, France, or to either of the following commissioners of deeds for the State of New York at Paris, France, viz.: Henry Peartree, Henry Cachard, Henry C. Charpiot, Benjamin H. Conner, Mandeville C. Jacobus, William A. Preston and John B. Robinson.” At the times hi question said Mason was the Consul General of 'the United States at Paris, France, and the commission was executed before him as already stated. The contention oh behalf
The only basis for the claim that the plaintiff and the witnesses were allowed to have counsel at the hearings, and that defendant was unable to ascertain before whom the commission would he executed, or to he present at the examination of the witnesses, is that after the commission was issued one of the attorneys for the defendant asked one Andrews, an attorney in the office of the plaintiff’s attorney, to whom the commission had been sent, to which inquiry Andrews replied that it would he sent immediately to Paris, where the plaintiff’s attorney, who had gone there, would receive it, hut that he did not know before which commissioner it would be executed, and that the plaintiff’s attorney would decide that upon receipt of the commission. It does not appear that defendant’s attorneys asked for the foreign address of the attorney for the plain
There is no statutory authority for suppressing depositions on the other grounds upon which the motion was made (Code Civ. Proc. § 910), but doubtless upon the- same principle that the testimony of a witness upon a trial, who refuses to be fully cross-examined, may be stricken out on the ground that the party who calls him cannot have the benefit of testimony with respect to which the witness refuses to be fully examined, the court possesses inherent power to suppress a deposition where the witness refuses to give material testimony called for by proper cross-interrogatories, and the proper practice is to move at Special Term in advance of the trial as was done here. (Calhoun v. Commonwealth Trust Co., 124 App. Div. 633.)
A proper understanding of the materiality of the evidence,' which it is claimed the witness failed to give, requires that the nature óf the issues be stated. The action is brought on six assigned causes of action against the defendant, based on a contract in writing made on the 11th day of September, 1899, between Hanson Brothers, party of the first part; Percival Farquhar, F. S. Pearson, Gr. B.. M. Harvey and B. F. Pearson, parties of the second part; Ernest Buffer, party of the third part; the Banque Internationale de Paris, party of the fourth part; the defendant, party of the fifth part, and the United States Mortgage and Trust Company, party of the sixth part. This agreement was supplementary to and in part a modification of an agreement in writing and, according to the answer under seal, between the same parties, except the United States Mortgage and Trust Company, made on the eighteenth day of
Some of the interrogatories, which it is claimed were not fully and fairly answered, and which called for the production" of' correspondence, i agreements, books of account, statements of account, and settlements of accounts, which were hot produced, "have no. bearing on the issues. They were designed to show that third parties had underwritten the liability of the .banque, with respect to these concessions, etc., to the extent of fifty per cent of its interests, and were entitled to that proportion of the stock and bonds and of the claim which was'assigned to the plaintiff. ,
Others of the interrogatories, which it is claimed were not fully and fairly answered, and which called for correspondence which was not produced, relate to correspondence between the banque and one Marcus, who was its agent in New York, and was also the treasurer .of the defendant, and who has since died. The apparent object of those questions and of having the correspondence to which they relate produced, is to show that during the period intervening between the time the first agreement was made between the defendant and the banque and others and the time the balance sheet was changed and entries' of this claim made in the records, as set forth in the answer, ■this claim was not asserted against the defendant. This might bear on the question of fraud, or waiver or estoppel, arid in view of the fact that Marcus is dead, it would seem that the defendant should be permitted to have this evidence, "especially inasmuch as it was called for by interrogatories annexed to the commission and presumably settled by consent or by the court, although "they are not cross interrogatories. Other interrogatories concerning which complaint is made of the answers and of the failure of the witnesses to produce evidence relate to statements of account between the banque and the defendant. This evidence might-have a bearing on the -same issues. Inasmuch, however, ■ as these matters relate only to the defense, and it does not satisfactorily appear that the witnesses had the" custody and control of the letters, papers and documents to which the inquiries relate, the depositions .should
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to the defendant to apply for letters rogatory to examine these or other witnesses with respect to the matters concerning which the examination under the cross-interrogatories has not been satisfactory, if it shall be so advised.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, but with leave to defendant to apply for letters rogatory as stated in opinion. Order to be settled on notice.