108 N.Y.S. 1027 | N.Y. App. Div. | 1908
On a former appeal herein this court affirmed an order, granted on the application of .the defendant, for a commission to examine certain designated witnesses and" others not designated, on oral questions, in the city of Paris, France, (122 App. Div. 923). The plaintiff is a domestic business corporation and the defendant is a domestic- banking corporation and the successor to the Hational Shoe and Leather Bank. It appears by the complaint in the record on the former appeal that the plaintiff seeks'to recover, on two counts, the amount of two items of money delivered to the defendant’s predecessor to transmit the equivalent thereof in francs to the plaintiff’s agent in Paris, together with interest thereon. One item is for $2,912.14, alleged to have. been delivered on the 24th
It appears by the record that each party, was represented by counsel before the commissioner, and that the testimony of these witnesses was taken at Petit-Bourg, a suburb of Paris, within an hour’s ride by train, where the plant of said societe was located, and qi.ursuant to.an arrangement made between the commissioner and counsel, on account of the inability of the.witnesses to come to the city. The plaintiff, having participated in the examination without ,the limits of the city of Paris, and having through its counsel assented thereto, should now be . estopped from claiming that the. depositions could only have been taken in Paris.
The second ground of objection is technical in the extreme, in the
Doubtless, the learned court, in suppressing the depositions, assumed that, in view of the attitude of the witnesses, it would be futile to return the commission, and that presumptively appears. It does not follow, however, that the depositions should have been suppressed. The defendant was not at fault, and there was no irregularity in the execution of the commission. The commissioner attempted to conform to the requirements of our procedure, but for
■ If the plaintiff be so anxious for a trial on the merits, as it appears to b.e with this evidence excluded, it may obtain the same at once by stipulating to give the defendant the benefit of this testimony; but if its desire for a speedy trial is founded upon or stimulated by the hope thereby to obtain an undue advantage over the defendant by preventing it from proving the facts upon which its defense is based and of which, whatever they be, the plaintiff must have full knowledge, it is< the-duty of the Court, in the interests of justice, to stay the trial until the evidence may be obtained in such form that it may be read upon the trial as matter of right.
On both parties being before the court on the motion to suppress the depositions, and on the facts' appearing, we are of opinion that the court should have denied the motion, and should have directed that a commission issue to take the testimony of those witnesses on interrogatories, or that letters rogatory issue, as may be determined by the court on settlement of the interrogatories. What the court at Special Term should have done this court may now do. Ordi
It -follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, the motion denied, with ten dollars costs, and that an order in favor of the defendant for a commission to take the testimony of these witnesses be granted, on interrogatories to be annexed thereto, in case it shall be decided on the settlement of the interrogatories to exclude questions with respect to the magnetos, but if such questions be allowed to stand, that then letters rogatory issue as prescribed by section 913 of the Code of Civil Procedure, without costs, and staying the trial of the issues until the defendant -shall be able to obtain the testimony of the witnesses in due form for use upon the trial, unless plaintiff shall file within five days a stipulation that the certified copies of the depositions returned by the commissioner may be read in evidence upon the trial as if they had been duly subscribed by the witnesses, with leave to the plaintiff to move to vacate the stay for failure of the defendant to proceed with due diligence.
Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.
Order reversed, with ten dollars, costs and disbursements,' and motion denied, with ten dollars costs, and order directed as indicated in opinion. Settle order on notice.