104 N.Y.S. 836 | N.Y. App. Div. | 1907
This is a. reference by agreement, pursuant to section- 2718’of the Code of Civil Procedure, of a disputed claim against an estate, which makes it an,action in the Supreme Court in which an issue of fact has been joined. The Legislature has expressly prescribed in section 893 of the Code of Civil Procedure that where an issue d • of fact has been joined in an action pending in the Supreme Court a commission may issue by consent of the parties or by order of the court without such consent, to take the depositions of witnesses without the State upon oral questions. The authority to issue commissions applies to actions instituted under said section 2718 of the Code of Civil Procedure, as this was, as- well as to actions begun by service of a summons. (Paddock v. Kirkham, 102 N. Y. 597.) The court properly scrutinizes an application for a commission to examine witnesses without the State upon oral questions, or for an open commission authorized by section 891 of the Code of Civil • Procedure, which neither requires that the witnesses be named nor limits their number, to the end that a party having the
It follows that the order should ■ be modified, without costs, as indicated in this Opinion, -the amount to be paid for such expenses to be determined on the settlement of the order. . ■
Ingraham, Clarke, Scott and Lambert, JJ., concurred.
Order modified as directed in opinion,, without costs. Settle order on notice.