Barnett v. Pardow

1 Edw. Ch. 11

• Court: New York Court of Chancery
• Decided: May 19, 1831
• Status: Published

Opinion

The Vice-Chancellor :

The practice under the 69th Rule of the court, relating to commissions for taking testimony has been considered and settled by the chancellor, who has favored me with a copy of his opinion, which it is only necessary to read: “ By the English practice, a commission to examine witnesses “abroad, appears to begrantedon a special application and on “ good cause shown; and terms are generally imposed upon the “ parties to prevent delay. Under our statute, the commission “ appears to be a matter of course; and I have understood the “ practice to be, that the party wishing time, to obtain the exami“nation of witnesses abroad, must apply and show good reasons, “ and get an order to extend the time for closing the proofs. Repeated applications of that kind have been made since I came “into the court. Indeed, it would be productive of great mis- “ chief and the commission would frequently be used for the “mere purpose of delay, if a party could stay the closing of the “proofs as a matter of course by issuing a commission under the “79th, 80th, and 81st sections of the statute, and the 69th rule. “ Although notice of the application to the register or clerk is “given, that is merely for the purpose of giving the adverse party “ an opportunity to join in the commission or to name commis- “ sioners. He has no power, under the rule, to judge of the “necessity of issuing a commission or to fix the time within which “it shall be returned orto impose any other terms to prevent its “ being used for the mere purpose of delay. The 87th section of “ the statute, in conformity to which the 68th rule was framed, is “general; and the rule applies to all proofs taken in chief in the “ cause before hearing, whether on commission or before an examine». If time is necessary, the party can apply directly to the “ court under the 71st rule, as a case not provided for by the “ preceding rules; and then the court can judge of the propriety “ of delaying the cause and extend the time to close the proofs, “ and impose terms, if necessary.”

It, therefore, appears, that the complainant should have applied for an order to enlarge the time for closing the proofs; and as he did not do so, the proceedings of the defendant are to be considered regular.

I must deny the motion, with costs.