John Stapleton, Respondent, v. Mazie N. La Shelle, as Executrix, etc., of Kirke La Shelle, Deceased, Appellant

John Stapleton, Respondent, v. Mazie N. La Shelle, as Executrix, etc., of Kirke La Shelle, Deceased, Appellant. (No. 2.) First Department, February 21, 1908. See head note in Simpleton v. La Shelle, No. 1 {ante, p. 338). Appeal by the defendant, Mazie N. La Shelle, as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of. New York on the 10th day of December, 1907, granting the plaintiff’s motion for the issuance of a commission to examine a witness without the State. Martin L. Stover, for the appellant. Benno Loewy, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: This is an appeal from an order similar to the order in the case under the same title decided herewith., (124 App. Div. 333.) For the reasons stated in that opinion the order appealed from, is affirmed, without prejudice to an application by the defendant to the Speecial Term for leave; to issue á new commission to orally cross-examine the witness if it should appear after an examination of the testimony as taken in the commission returned that such cross-examination is necessary, with no costs of this appeal. Patterson, P. J., Laugiilin, Clarke and Houghton, JJ., concurred, Order affirmed, without prejudice to application, as indicated in opinion. Settle order on notice.