Clark v. Sullivan
New York Supreme Court
Appeal from Monroe county court. Action by Charles W. Clark against Sarah E. Sullivan, in which an open commission to take testimony was ordered on plaintiff’s motion.
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Appeal from Monroe county court. Action by Charles W. Clark against Sarah E. Sullivan, in which an open commission to take testimony was ordered on plaintiff’s motion. The order was granted on notice to the defendant’s attorney, and was founded upon the affidavit of the plaintiff’s attorney, which constituted the only proof presented to the court; and the material part of the affidavit states “that the plaintiff has fairly and fully stated the case in said action to Zachary P. Taylor, his counsel therein, and has fully and fairly disclosed to said counsel the facts which he intends to prove…
1Opinion of the CourtBarker, P. J.
The order under review was granted by another court, and cannot be reversed or modified by this court, except for legal error, as matters which rest purely in the discretion of the court are not appealable. The right of a party to an action to take the deposition of a witness out of the state, under a commission, to be read on the trial, is founded on the statute, and-all its requirements must be observed by the moving party, or the court has no power to grant an order for a commission to issue. McColl v. Insurance Co., 50 N. Y. 332; In re An Attorney, 83 N. Y. 164. An open commission can…
2Cases cited3 opinions
- Steuben County Bank v. . AlbergerNew York Court of Appeals · 1879
- In the Matter of an AttorneyNew York Court of Appeals · 1880
- McColl v. . Sun Mutual Insurance Co.New York Court of Appeals · 1872
3Cited by1 opinion
- Newman v. GoddardCourt of Appeals for the D.C. Circuit · 1898