General
Raney and others vs. Weed and others
1 Barb. 220·New York Supreme Court·1847·NY
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Opinion
Same Term.
Before the same Justice.
Raney and others vs. Weed and others.
After the testimony of a' witness has been taken, upon a commission, and the commission returned, the party cannot have a new commission, to re-examine the witness, merely on the expectation that he may now swear more definitely than before; in the absence of any suggestion that the witness has made a mistake, or that new evidence has been discovered.
More especially will such an application he refused where the only other witness who was cognizant of the facts to which the witness is sought to bo re-pxamined is dead.
This was a motion by the defendants for leave to issue a new commission to re-examine one of the same witnesses who was examined under a former commission. One of the witnesses had died since the former commission was returned. The party moving asked a new commission upon the ground that from recent occurrences, the surviving witness would now be able to testify more definitely than before.
T. H. Rodman, for the plaintiff.
H. A. Weed, for the defendants.
[MAJORITY — Edmonds, J.]
Edmonds, J.
With full knowledge on the part of the defendants, as to what the witness Bates could testify to, they issued their commission, framed their interrogatories, and obtained the witness’ answer; and now without any suggestions that their witness has made any mistake, or that any new evidence had been discovered, but merely on the expectation that he may now swear somewhat stronger on a point upon which he has been already examined, the motion is to. have the witness reexamined. That ought not to be allowed. The practice would be fraught with too much danger; especially where the only other witness who was cognizant of the fact to which the witness is sought to be re-examined has since died. The advantage would be all on one side; and granting the order would give the witness, if he wished, an opportunity of yielding to passion or prejudice in restating his testimony, with entire safety to himself.
Motion denied with costs.