Mitteldeutchen Privat Bank, Respondent, v. Isaac Chaitin and Jacob Bobrow, as Copartners, Doing Business under the Name of Chaitin & Bobrow, Appellants

Mitteldeutchen Privat Bank, Respondent, v. Isaac Chaitin and Jacob Bobrow, as Copartners, Doing Business under the Name of Chaitin & Bobrow, Appellants. First Department, April 5, 1917. Stay of trial pending return of letters rogatory for examination of witness in Germany. Where it has been determined in an action upon a bill of exchange payable in Germany that the defendants are entitled to letters rogatory to take the evidence of a witness in that country, the defendant is entitled to a stay of the trial of the action until the return of said letters, although it is evident that owing to the present war they cannot be returned for some time to come. However, the plaintiff should be given leave to move to vacate the stay if it subsequently appears that the defendants have unreasonably delayed in procuring the execution and return of said letters. Appeal by the defendants Isaac Chaitin and another, 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 22d day of December, 1916, in so far as it denies their motion for a stay until the return of certain letters rogatory issued to take testimony in Germany tó be used on the trial of the action, and further denies their motion for a reargument. Abraham Tulin, for the appellants. — —, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The action is upon a bill of exchange accepted by defendants and payable by them at Leipzig, Germany, on October 31, 1914. The action was not commenced until February, 1916, a year and four months after the cause of action arose. It is apparent that for some reason the plaintiff was in no haste to sue. An answer was interposed and an application made and granted for the issuance of letters rogatory to take the evidence of a witness in Germany. There was some delay in preparing the interrogatories and having them translated, but this was not serious and is explained by defendants’ attorney, and there seems to be no ground for attributing bad faith to him. Although the letters were issued the court refused to stay the trial until they could be returned. Of course, under the conditions presently existing in Germany, and the difficulties in the way of mail communication between that country and this it will do the defendants no good to have issued the letters if the stay of the trial is denied, because, so far as can be foreseen, the cause will come on for trial long before the letters rogatory can possibly be returned. If the defendants were entitled to the issue of letters, as we must assume that they were, they should, under the circumstances above referred to, be made effective by a stay of the trial. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to move hereafter to vacate the stay if it shall appear that defendants have unreasonably delayed in procuring the execution and return of the letters. Clarke, P. J., Laughlin and Smith, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to move to vacate stay as stated in opinion.