Mitchell v. Montgomery

6 Sandf. 676

• Court: The Superior Court of New York City
• Decided: November 15, 1851
• Status: Published

Opinion

Oakley, Ch. J.,

(with the concurrence of all the Justices.)— The defendant has sufficiently accounted for his omission to examine this witness conditionally or on the former trial, and for the delay in making this application. But it appears the witness is expected to testify to a point on which, there was conflicting evidence on the trial. We consider it a dangerous practice to issue a commission for such a purpose ; a practice we are not at all disposed to encourage, though we will not say that there may not be a case in which it would be proper. Here, so far as this witness is concerned, the whole controversy is respecting two days demurrage at fifty dollars a day. The granting of a condition is discretionary; and under the circumstances stated, with the fact that the expenses of both parties in executing it will greatly exceed the sum to be influenced by the testimony, we think the cause should not be delayed to examine the witness.

Motion denied.