Arthur W. Depue, Respondent, v. Mary C. Depue, Appellant

Arthur W. Depue, Respondent, v. Mary C. Depue, Appellant. First Department, November 23, 1906. Deposition. — oral examination of foreign witnesses in divorce action refused. An oral examination of witnesses upon a commission to be executed without ■the State is proper Only when very strong reasons therefor are shown to exist. The fact that the action is for divorce, and that the witnesses are to be asked to • testify to alleged acts of adultery, tends rather against than for the granting of such commission. ' When the moving affidavit does not show that the proposed witnesses are adversé to the plaintiff, but only generally averse to testifying on that subject and fails to show that any efforts have been made to obtain information from them, and is based solely upon conclusions, the oral examination should be denied. ■ Appeal by the defendant, Mary C. Depue, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office, of the clerk of the county of Mew York on the 10th day of July, 1906, granting the.plaintiff’s motion for a commission. to take the testimony of certain witnesses upon oral questions under section '893 of the Code of Civil Procedure. Reid L. Carr, for the appellant. William H. Cochran, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: An oral examination of witnesses upon a commission to be executed without the State is permitted only when very strong' and special reasons therefor are shown to exist. Mo such reasons are shown in the present case. The affidavit upon which the motion was based states-as the conclusion of the plaintiff that owing to the character of the action and the disinclination of the proposed witnesses to testify- it has been impossible to secure stick full statements from; them as will enable and permit counsel to draw such interrogatories for their respective examinations as will bring -out all the facts within their knowledge and which are. material to the alleged acts of adultery, meaning doubtless material to the proof of such acts. The affiant also says that his counsel advises him that the proper. examination of said witnesses can only be made by oral questions. This affidavit differs from others which have heretofore been held to be insufficient to support similar motions, only in that it states no' facts at all from which the court can determine that a commission for examination upon oral questions should issue. It does not say that the proposed witnesses. are adverse to plaintiff, but only that they are averse to testifying, which would probably be true in whatever form their examination is sought. It does not show that any efforts, of what efforts, have been made to obtain information from them, although it does show, in another paragraph, that plaintiff has been able to state to his counsel fully what, he expected to prove by each witness. In short, those portions of the affidavit intended to be persuasive consist only of the affiant’s conclusions with no statement of the facts upon which those conclusions rest. The fact that the action is for divorce is rather a reason against than for the desired commission. ‘ • " The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. Order reversed, with ten dollars costs and disbursements and motion denied, with ten dollars costs. . Order tiled.