
    NATIONAL BANK OF BATTLE CREEK, v. HOWARD.
    (Supreme Court, Appellate Division, First Department.
    May 31, 1907.)
    Action by the National Bank of Battle Creek against Oliver O. Howard. Appeal by defendant from an order denying a motion for the issuance of a commission to take testimony on oral interrogatories.
    Affirmed, on conditions.
    Ralph S. Rounds, for appellant.
    Andrew J. Shipman, for respondent
   PER CURIAM.

The order appealed from should be reversed, and the motion for an open commission granted, with $10 costs and disbursements of the appeal and $10 costs of motion to the appellant to abide the event of the action, unless plaintiff files a stipulation within five days after the service of the order to be entered hereon that it will produce the witnesses Nichols and Austin for examination by the defendant upon the trial of the action, and that it will also produce the books and papers specified in the affidavit of the defendant necessary for the proper examination of said witnesses upon the trial. In the event that the plaintiff makes such a stipulation, and the witnesses or the necessary books and papers are not produced, the trial shall be adjourned pending the issue and execution of a commission. The defendant may then renew this application at the Special Term for a commission. If such stipulation is filed, the order appealed from is affirmed, without costs.  