Darling v. Klock
New York Supreme Court
Appeal from special term, Rensselaer county. Action by Henry H. Darling against Daniel Klock, Jr. From: an order granting an open commission to take testimony, defendant appeals.
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Appeal from special term, Rensselaer county. Action by Henry H. Darling against Daniel Klock, Jr. From: an order granting an open commission to take testimony, defendant appeals. The order appealed from is as follows: On reading and filing the affidavit of Henry H. Darling, verified the 29th day of May, 1893, making satisfactory proof that one or more witnesses-not within this state are material and necessary in the prosecution of this action, and on the pleadings and proceedings in this action, and on proof of due service of the annexed notice of motion with the copy of the said affidavit,…
1Opinion of the CourtPutnam, J.
An order for an open commission should not be granted on motion of the plaintiff, without the strongest proof of its necessity, (Lentilhon v. Bacon, [Sup.] 20 N. Y. Supp. 488,) especially in a case like this, where its effect will probably be to compel the defendant to proceed with his counsel to the distant territory of New Mexico, and remain for a considerable time, necessarily incurring great expense. We think the order granted in this case should not be sustained. It authorizes the examination before the commissioner in New Mexico of any witness either party may produce. It does not name…
2Cases cited6 opinions
- Jemison v. Citizens' Savings Bank of JeffersonNew York Court of Appeals · 1881
- Lentilhon v. BaconNew York Supreme Court · 1892
- Parker v. LythgorNew York Supreme Court · 1891
- Hart v. Ogdensburg & L. C. RailroadNew York Supreme Court · 1893
- Jones v. HoytThe Superior Court of New York City · 1882
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Ordway v. RadiganAppellate Division of the Supreme Court of the State of New York · 1906
- Burnell v. ColesAppellate Terms of the Supreme Court of New York · 1898
- Gelderman v. Stoomvaart Maatschappy Nederland & Funch Edye & Co.New York Supreme Court · 1924