176 Misc. 51 | N.Y. Sup. Ct. | 1941
Motion by defendant for an order directing that a commission issue to the consular representative of the United States, situated at Berne and Zurich, Switzerland, to take the deposition of four witnesses, two named and two unnamed, upon written interrogatories, and that the cost of such commission be borne by the plaintiff and to stay the trial of this action until the return of the commission. The action is to recover damages for breach of contract to sell and deliver tie silks to the plaintiff.
The defendant served a demand on plaintiff pursuant to section 323 of the Civil Practice Act, to admit specific facts set forth, and upon plaintiff’s omission to do so, applies for the above relief to prove such facts by said persons, those whose names are known and those whose names are unknown.
To grant a commission where there is no power in the commission officer to compel attendance of the witnesses, or punish them for non-attendance, would be an empty ceremony and wholly meaningless. The court will not indulge in idle gestures. Obviously, where letters rogatory are issued, which the foreign court will execute, attendance before such court can be compelled by its process and disobedience punished. In the circumstances I hold that the proper practice and procedure is letters rogatory, authorized by section 309 of the Civil Practice Act. The motion is denied, without prejudice to apply for the issuance of letters rogatory. Submit order.