Lopez v. International Aircraft Trading Co.

269 A.D. 79, 54 N.Y.S.2d 109

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1945
• Status: Published

Opinion

Untermyer, J.

The plaintiff served proposed interrogatories to five witnesses to be examined in foreign countries on letters rogatory. The defendants’ motion to strike out certain of the interrogatories was denied by the Special Term.

The interrogatories addressed to each of the witnesses conclude with an interrogatory which, in slightly varying form, reads as follows: * ‘ Do you know anything concerning the matters in question that may tend to he a benefit and advantage to the plaintiff? If the answer is yes, declare the matters fully and at large, as though you have been thoroughly interrogated concerning the same.”

Although we are aware of the general practice of including such an interrogatory, we think it is a practice which ought not to be approved. The question which it propounds is so general in its terms that the opposing party is deprived of any opportunity to cross-examine the witness concerning matters to which he may testify. (5 Wigmore on Evidence [3d ed.], § 1392; McBride v. Macon Telegraph Co., 102 Ga. 422.) The concluding interrogatory addressed to each of the five witnesses should, therefore, be stricken out, as should also, for the same reason, the sixth interrogatory addressed to the witness Caamano. The fourth interrogatory addressed to the witness Caamano and the third interrogatory addressed to the witness Lopez should be stricken out as incorporating a conclusion of law.

All these objections are directed, not to the materiality of the evidence, but to the form of the questions which, unless taken at this time, might not be available at the trial. (Rules Civ. Prac., rule 129.)

As so modified, the order so far as appealed from should be affirmed, without costs.

Mastín, P. J., Townley, Glennon and Doee, JJ., concur.

Order so far as appealed from, unanimously modified as indicated in opinion, and as so modified affirmed, without costs. Settle order on notice.