
    William D. Martin, Appellant, v. The New Trinidad Lake Asphalt Company, Ltd., Respondent.
    
      Deposition — open commission.
    
    Appeal from so much of an order of the Supreme Court, entered in the Hew York county clerk’s office on the 28th day of January, 1916, as denies a motion for . commissions to examine certain witnesses upon oral in terrogatories.
   Davis, J.:

This action is brought to recover royalties for the second six months of 1903 under a license agreement. A commission upon written interrogatories to examine Sewell and Warren has been issued and returned. Two hundred and thirty-eight interrogatories have been put to each witness, but the plaintiff claims that the answers are evasive. The court has made an order for the issuance of another commission to examine upon written interrogatories Sewell and Warren, and still another to examine Balfour, Lang and Fowler, the court having denied plaintiff’s application for an open commission and for a commission to examine the persons designated upon oral questions. The plaintiff appeals from that part of the order denying the motion for the open commission and for the commission to examine on oral questions the designated persons. An open commission is unusual, apt to be very expensive and interminable and harassing. However, the manifest difficulties confronting the.plaintiff in obtaining his proofs show this case to be peculiarly one for a commission to examine the persons designated on oral questions. The order so far as appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent of directing the issuance of a commission to examine on oral questions the proposed witnesses, Sewell, Warren, Balfour, Lang and Fowler. Clarke, P. J., McLaughlin, Dowling and Smith, JJ., concurred. Order reversed, with ten dollars costs and dis-ta ursments,-and motion granted to the extent stated in opinion.  