Delcomyn v. Chamberlain
The Superior Court of New York City
Appeal from a taxation of costs. The plaintiff, a resident of London, for the purpose of testifying in his own behalf, applied to the special term for a commission, appointing commissioners in London, to take his deposition upon interrogatories. The motion was granted; an order in the common form was entered, and a commission, with interrogatories and cross-interrogatories, was sent to London. ' No provision was made in the order for the expense of the commission.
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Appeal from a taxation of costs. The plaintiff, a resident of London, for the purpose of testifying in his own behalf, applied to the special term for a commission, appointing commissioners in London, to take his deposition upon interrogatories. The motion was granted; an order in the common form was entered, and a commission, with interrogatories and cross-interrogatories, was sent to London. ' No provision was made in the order for the expense of the commission. It was duly executed and returned, and used on the trial. The plaintiff recovered a judgment, and the clerk, as a part of the…
1Opinion of the Court
Monell, C. J.—
The power to take the testimony of a witness residing out of the jurisdiction of the court is derived wholly from the statute (2 R. S., 393, sec. 11). There is no common-law right (McCall agt. Sun Mut. Ins. Co., 34 Superior Ct. R., 310; affirmed, 50 N. Y. R., 332).
Under the statute, the court may award the. commission “ upon such terms as it shall think proper.” •
In this case it would have been competent for the court, in the order awarding the commission, to have provided that, as the examination was wholly for the plaintiff’s benefit, the commission should be executed at his…
2Cited by5 opinions
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