Mitteldeutchen Privat Bank v. Chaitin

Appellate Division of the Supreme Court of New York

Mitteldeutchen Privat Bank v. Chaitin

177 A.D. 460, 164 N.Y.S. 161, 1917 N.Y. App. Div. LEXIS 5708

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 5, 1917

StatusPublished

This text of 177 A.D. 460 (Mitteldeutchen Privat Bank v. Chaitin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitteldeutchen Privat Bank v. Chaitin, 177 A.D. 460, 164 N.Y.S. 161, 1917 N.Y. App. Div. LEXIS 5708 (N.Y. Ct. App. 1917).

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Opinion

Scott, J.:

The action is upon a bill of exchange accepted by defendants and payable by them at Leipzig, Germany, on October 31, 1914. [461]*461The action was not commenced until February, 1916, a year and four months after the cause of action arose. It is apparent that for some reason the plaintiff was in no haste to sue. An answer was interposed and an application made and granted for the issuance of letters rogatory to take the evidence of a witness in Germany. There was some delay in preparing the interrogatories and having them translated, but this was not serious and is explained by defendants’ attorney, and there seems to be no ground for attributing bad faith to him. Although the letters were issued the court refused to stay the trial until they could be returned. Of course, under the conditions presently existing in Germany, and the difficulties in the way of mail communication between that country and this it will do the defendants no good to have issued the letters if the stay of the trial is denied, because, so far as can be foreseen, the cause will come on for trial long before the letters rogatory can possibly be returned. If the defendants were entitled to the issue of letters, as we must assume that they were, they should, under the circumstances above referred to, be made effective by a stay of the trial.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to move hereafter to vacate the stay if it shall appear that defendants have unreasonably delayed in procuring the execution and return of the letters.

Clarke, P. J., Laughlin and Smith, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to move to vacate stay as stated in opinion.

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Scott, J.:

The action is upon a bill of exchange accepted by defendants and payable by them at Leipzig, Germany, on October 31, 1914. [461]*461The action was not commenced until February, 1916, a year and four months after the cause of action arose. It is apparent that for some reason the plaintiff was in no haste to sue. An answer was interposed and an application made and granted for the issuance of letters rogatory to take the evidence of a witness in Germany. There was some delay in preparing the interrogatories and having them translated, but this was not serious and is explained by defendants’ attorney, and there seems to be no ground for attributing bad faith to him. Although the letters were issued the court refused to stay the trial until they could be returned. Of course, under the conditions presently existing in Germany, and the difficulties in the way of mail communication between that country and this it will do the defendants no good to have issued the letters if the stay of the trial is denied, because, so far as can be foreseen, the cause will come on for trial long before the letters rogatory can possibly be returned. If the defendants were entitled to the issue of letters, as we must assume that they were, they should, under the circumstances above referred to, be made effective by a stay of the trial.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plaintiff to move hereafter to vacate the stay if it shall appear that defendants have unreasonably delayed in procuring the execution and return of the letters.

Clarke, P. J., Laughlin and Smith, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to move to vacate stay as stated in opinion.

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Bluebook (online)

177 A.D. 460, 164 N.Y.S. 161, 1917 N.Y. App. Div. LEXIS 5708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitteldeutchen-privat-bank-v-chaitin-nyappdiv-1917.