ANDERSON against WEST

ANDERSON against WEST. New York Superior Court; Special Term, November, 1870. Deposition on Commission.—Oral Cross-examination. ' The court have power, in their discretion, on granting an order to take a deposition on commission, to allow the adverse party leave cross-examine the witness orally. The case of Clayton v. Yarrington (16 Abb. Pr., 273), approved. Motion for a commission. This action was brought by James C. Anderson against Thomas H. West and Andrew Titus, to recover a balance claimed to be due the plaintiff, who averred that in the summer of 1868 he shipped a large quantity of peaches from Ohio to the defendants to be sold on commission—plaintiff alleging that a contract was made by defendants' or their agent that the same should bring the plaintiff an average of seven dollars per crate or box, that instead they only averaged four dollars and forty-five cents per crate or box, and claiming a balance still due him. The plaintiff now made a motion for a commission to examine four witnesses, residents of Ohio. The defendants opposed this, and read an affidavit of one of the defendants, setting up that they are wholly unacquainted with the defendant; never saw him; never made the contract alleged in the complaint; never authorized any one, as their agent, to make the same ; that questions of identity will arise on the examination of the said witnesses, and other questions which it will be impossible for defendants’ counsel to foresee and adequately prepare for, unless the commission be issued upon the condition that defendants be allowed to attend before the commissioner, and orally cross-examine the said witnesses. J. H. & W. L. Van Derzee, for the defendants. 1. The issuing of a commission rests solely in the discretion of the court, which may deny, or grant it, upon such terms and conditions as it may think just (Vandervoort v. Columbian Ins. Co., 3 Johns. Cas., 137; Rogers v. Rogers, 7 Wend., 514; Ring v. Mott, 2 Sandf., 683). II. The affidavit of defendant presents a clear case for the exercise of that discretion, and as the practice of taking’ testimony by commission is more or less unsatisfactory, the court should not grant this motion, except upon the condition that the defendants .be allowed to orally cross-examine. The court has power to impose this condition (Clayton v. Yarrington, 16 Abb. Pr., 273, note). III. The case of Deshon v. Packwood (16 Abb. Pr., 272, note), is not in point. That was a motion on part of plaintiff, for an oral examination of his own witnesses out of the State. Chase, Bestow & Holt, for the motion; Relied upon Deshon v. Packwood (supra), and argued at length that there was no statutory right to oral cross-examination ; that the statute provides only for written interrogatories; and that it would be unjust to the plaintiff to compel him to employ counsel to meet an oral cross-examination in another State. [MAJORITY — Spencer, J.] Spencer, J. The plaintiff moves for a commission to examine witnesses in Ohio. The defendant does not object, but claims the privilege of attending the examination and orally cross-examining said witnesses, and presents and reads an affidavit of one of the defendants, showing cause for such oral examination, and which I deem sufficient for the purpose, and presenting a strong case for the exercise of the ■ discretion of the court in departing from the usual practice of examination and cross-examination of witnesses under a commission. The opinion of Hoffman, J., in Deshon v. Packwood, does not affect the exercise of such discretion in this case. I think the decision in the case of Clayton v. Yarrington (16 Abb. Pr., 273), and the opinion of Davies, J., subsequently approved by the supreme court in this district at general term, to be eminently just and sound. The motion is granted, upon condition that defendants have notice of the time and place of examination, and liberty to orally cross-examine the witnesses ; the plaintiff to have the liberty to continue the examination orally if he shall so elect.