Morrell v. Hey

15 Abb. Pr. 430, 24 How. Pr. 48

Opinion

Ingraham, P. J.

The plaintiff moves for a commission to examine a witness in supplementary proceedings.

It is conceded that prior to amendment of the Code, in 1860, such a motion could not be granted.

I do not think the amendment of the Code, in section 399, alters that rule. That section, as amended, only applies to the examination of the witness, and extends to special proceedings the right to examine a párty as in an action. It does not allow, a commission to issue for such purpose. There is no other statute which makes such a commission proper. The Eevised Statutes, under which commissions are issued, require issue to be joined.

The law as to commissions for the examination of witnesses, is not altered either by the amendments of 1860 or 1862.

Motion denied.