17 N.Y.S. 857 | N.Y. Sup. Ct. | 1892
It is apparent that an open commission should not be granted except under exceedingly peculiar circumstances, because, by such a commission, frequently, the place of trial is virtually transferred to a foreign jurisdiction. The papers in this case present no special reasons for the granting of such extraordinary relief, except the fact that the witnesses proposed to be examined are hostile to the defendant, and that, therefore, it is necessary to examine them orally. Where a party is called upon to justify against a trespass committed within this state, we do not think that the plaintiff should be required to attend by counsel the taking of testimony in another state, and that the ordinary means of taking the testimony of witnesses should be resorted to, and not an open commission. The case of Parker v. Lythgoe, (Sup.) 13 N. Y. Supp. 949, is cited as an authority to support the application in question. Upon an examination of that case, it will be seen that it is no authority whatever for the contention of the defendant. It is simply in harmony with the cases of Clayton v. Yarrington, 16 Abb. Pr. 263, and Ander