Louis Ax, Appellant, v. Meyer & Lange, Respondent

Louis Ax, Appellant, v. Meyer & Lange, Respondent. First Department, May 4, 1917. Depositions—when commission to foreign country should be issued — sufficiency 'of moving papers — strict rules appertaining to applications for attachments not applicable. In an action by the assignee of a shipper in a foreign country for damages for defendant’s refusal to accept the shipped goods, the plaintiff being compelled to seek his evidence or a part thereof in a foreign country, is entitled almost as a matter of course to a commission, unless he has been guilty of laches or is seeking a delay. Papers on such an application examined, and held, sufficient. It is not necessary on a motion for a commission to follow the strict rules appertaining to applications for attachments. Appeal by the plaintiff, Louis Ax, 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 5th day of March, 1917, denying his motion for a commission to take testimony in the city of Amsterdam, Holland, and for a stay. Thomas P. Hanagan, for the appellant. Edward W. Drucker, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Plaintiff sues as assignee of a shipper in Holland, for damages for defendant’s refusal to accept the shipped goods. In the nature of things plaintiff must seek his evidence, or a part of it, in Holland, and his only course is to issue a commission. To grant an order for a.commission in such a case is almost a matter of course unless the applicant has been guilty of laches or is obviously seeking delay. Neither of these objections appears in the present case. Plaintiff has already made two motions which have been denied for supposed defects in his motion papers. What these defects are we are not informed, but it would appear from the opinion rendered at Special Term that they were similar to those which that court found in the present motion papers. We do not find these latter papers defective. They seem to set forth with quite sufficient detail the necessary facts. It is not necessary, on a motion for a commission, to follow the strict rules appertaining to applications for attachments. To deny plaintiff the right to take evidence abroad by commission is to deny him an opportunity to prosecute his action. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to defendant to move hereafter to vacate the stay in case the execution and return of the commission is unreasonably delayed. Clarke, P. J., Smith, Page and Davis, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted with ten dollars costs, with leave to defendant to move as stated in opinion.