Harden v. Hoops

137 A.D. 299, 121 N.Y.S. 1086, 1910 N.Y. App. Div. LEXIS 666

Opinion

Miller, J.:

The moving papers show that the plaintiff wishes to examine the proprietors, managers and bookkeepers of certain hotels in Hew Jersey, but only one, Mr. A. B. Hammond, is named. A commission may only issue to take the testimony upon interrogatories of witnesses named therein, and necessarily, therefore, named in the moving papers. (Code Civ. Proc. § 887; Lazarus v. Schroder, 49 App. Div. 393.) The plaintiff also desires to take the depositions of three witnesses, named, residing in Chicago in the State of Illinois. It sufficiently appears that the witnesses named in the moving papers are material witnesses. It is objected that, the plaintiff wishes to examine the Chicago witnesses, who are attorneys, relative to confidential communications made to them by their client; but we are unable to tell from the moving papers how much of the examination sought will be privileged. Besides, the client may waive the privilege. Questions of this sort can only be determined" ■when they actually arise: ' A commission issues as a matter of course to take the testimony of material witnesses residing without the State. The fact that a motion for an open commission had been denied was no reason for the denial of a motion for a commission to take the depositions upon written interrogatories.,:

The order should be reversed, with ten dollars costs and disbursements, and an order granted directing that a commission issue to examine upon written interrogatories the witnesses named in the" moving-papers. '

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten-dollars costs.