Wainwright v. Low

1 N.Y.S. 786, 56 N.Y. Sup. Ct. 283, 17 N.Y. St. Rep. 693, 49 Hun 283, 1888 N.Y. Misc. LEXIS 1571

Opinion

Pratt, J.

Commissions to examine witnesses upon interrogatories are to be granted “upon such terms as justice may require. ” Code Civil Proc. § 889. These terms may well be, in a proper case, that the witnesses shall be subjected to an oral cross-examination. The court has, therefore, power to annex such a condition to the order allowing the commission; and where a party is to be examined in his own behalf a proper case would seem to be presented. To hold that section 895 deprives the court of the power to annex such condition in a proper ease would involve as a consequence that the interests of infants, idiots, and lunatics, whose rights depend upon the same section, are to be visited with an additional disability, in that the law does not grant them the protection it accords to other parties. In the present case, as witnesses are to be examined at the residence of the plaintiff, no hardship to her can be apprehended. Order appealed from modified by allowing the witnesses to be cross-examined orally.