Treadwell v. Pomeroy

2 Thomp. & Cook 470

• Court: New York Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

Davis, P. J.

Issue having been joined by answer, as to one of several defendants in this action, the plaintiff moved, on the usual affidavit, for a commission to take the testimony of a witness residirig in the State of 'Kansas, The defendant as to whom the issue is joined objected, on the ground that issue was not also joined as to all the defendants named in the complaint. The court granted the motion, and ordered a commission to issue, providing, however, in the order, that the testimony taken under it should not affect the other defendants. From this order the defendant appeals, insisting that the court has no power to issue a commission until the action is at issue as to all the defendants. Chapter 375 of the Laws of 1862 provides, that “whenever any issue of .fact shall have been joined in any such action or proceeding, and it shall appear, on the application of either party, that any witness not residing in this State is material in the prosecution or defense of such action or proceeding, the court may * * award a commission * * to examine such witness” on interrogatories. This provision does not seem to leave any doubt as to the power of the court, and if there were any question under the Revised Statutes, which we do not think to have been the case, the amendment of 1862, above referred to, wholly removes it. The discretion of the court was properly exercised, but we think the order was not appealable. This court so held in Thatcher v. Bennett, cited at page 555 of Voorhees’ Annotated Code (edition of 1870). It does not affect prejudicially any substantial right of defendant. On the contrary, it tends to expedite the case, and preserve the evidence on which the substantial rights of both parties may be ascertained and enforced. The appeal should be dismissed with $10 costs and disbursements.

Daniels and Donohue, JJ., concurred.

Appeal dismissed. ■