Paddock v. . Kirkham
New York Court of Appeals
Appeal from, order of the General Term of the Supreme Court, in the second judicial department, made December 15, 1885, which affirmed an order of Special Term, directing the issuing of a commission to take the testimony of witnesses out of the State. This was a reference under the statute of a disputed claim against the estate of Jacob Cole, deceased. An action is an ordinary proceeding in a court of justice; every other remedy or prosecution is a special proceeding.
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Appeal from, order of the General Term of the Supreme Court, in the second judicial department, made December 15, 1885, which affirmed an order of Special Term, directing the issuing of a commission to take the testimony of witnesses out of the State. This was a reference under the statute of a disputed claim against the estate of Jacob Cole, deceased. An action is an ordinary proceeding in a court of justice; every other remedy or prosecution is a special proceeding. (Code of Proc., §§ 2, 3; Code of Civ. Pro., §§ 3333, 3334.) This is not an action but a special proceeding under a special…
1Opinion of the CourtRapadlo, J.
The power to issue a commission to take testi- • many out of the State depends entirely upon statutory provisions, and is regulated now by section 888 of the Code of Civil Procedure, which is in substance a re-enactment of a like provision of the Revised Statutes. Section 888 provides for the issuing of such a commission only “ where an issue of fact has been joined in an action pending in a court of record.”
The appellant contends that this reference was not an action but a special proceeding, citing Roe v. Boyle (81 N. Y. 305, 303) and Mowry v. Peet (88 id. 453), and that consequently the…
2Cases cited1 opinion
- Roe v. . BoyleNew York Court of Appeals · 1880
3Cited by7 opinions
- Matter of BinghamNew York Court of Appeals · 1891
- Bohen v. North American Life Insurance Co. of ChicagoSupreme Court of Iowa · 1920
- Deery v. ByrneAppellate Division of the Supreme Court of the State of New York · 1907
- Moormeister v. Golding, Director of Registration Dept.Utah Supreme Court · 1933
- Crane v. EvansNew York Supreme Court · 1887
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