McColl v. . Sun Mutual Insurance Co.
New York Court of Appeals
Appeal from order of the General Term of the Superior Court of the city of New York, reversing an order of Special Term awarding commissions to take the testimony of certain witnesses residing in Nova Scotia. The order was made after trial and judgment and appeal, and while the appeal was pending undetermined. The statute under which the commission issued is remedial, and should he liberally construed.
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Appeal from order of the General Term of the Superior Court of the city of New York, reversing an order of Special Term awarding commissions to take the testimony of certain witnesses residing in Nova Scotia. The order was made after trial and judgment and appeal, and while the appeal was pending undetermined. The statute under which the commission issued is remedial, and should he liberally construed. (People v. Tibbets, 4 Cowen, 392; Donaldson v. Wood, 22 Wend., 397; Weed v. Tucker, 19 N. Y., 433 ; Wegman v. Childs, 41 id., 159.) The order for the commission was in the discretion of the…
1Opinion of the CourtAnbuews, J.
The order awarding a commission in this case was made at Special Term, upon the application of the plaintiffs, after judgment and after appeal therefrom by the defendant to the General Term, and while the appeal was pending and undetermined.
The right of a party to an action to have the evidence of witnesses taken upon commission, and the power of the court to award a commission, depends solely upon the statute.
The statute authorizes the court to award a commission for the examination of foreign witnesses whenever an issue, of fact shall have been joined and it shall appear that the witness to…
2Cited by5 opinions
- In the Matter of an AttorneyNew York Court of Appeals · 1880
- In re BernhardAppellate Division of the Supreme Court of the State of New York · 1931
- Woods v. BartonAppellate Division of the Supreme Court of the State of New York · 1929
- Clark v. SullivanNew York Supreme Court · 1889
- Crane v. EvansNew York Supreme Court · 1887