Jones v. Hoyt
The Superior Court of New York City
Appeal from an order granting an open commission to take testimony without the state. The action was for breach of warranty and false representation upon a sale by the defendants to the plaintiff’s testator of a quantity of barley, in November, 1878. The plaintiff’s affidavits allege that the barley in question was obtained by the defendants in the city of Milwaukee, Wisconsin, and the witnesses to prove its identity and quality, some of whom are named and some not, reside…
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Appeal from an order granting an open commission to take testimony without the state. The action was for breach of warranty and false representation upon a sale by the defendants to the plaintiff’s testator of a quantity of barley, in November, 1878. The plaintiff’s affidavits allege that the barley in question was obtained by the defendants in the city of Milwaukee, Wisconsin, and the witnesses to prove its identity and quality, some of whom are named and some not, reside in that city. One of the affidavits submitted alleges that the deponent therein has visited the city of Milwaukee for the…
1Opinion of the CourtRussell, J.
Section 894 of the Code has made an innovation upon the former practice. It provides:
“ Where an issue of fact, joined in an action, is pending in either of the courts specified in the last section, the parties may stipulate, in writing, or the court, or judge thereof, may in its or his discretion, upon the application of either party, and upon satisfactory proof, by affidavit, that one or more witnesses not within the state, are material and necessary in the prosecution or defense of the action, make an order upon such terms as it or he deems proper, directing that an open commission issue or…
2Cited by2 opinions
- Darling v. KlockNew York Supreme Court · 1893
- Fortunato v. Mayor of New YorkNew York Court of Common Pleas · 1893