
    Lewis Nordlinger, App’lt, v. Adolph Anderson et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed, May 24, 1889 )
    Evidence—Testimony taken by commission—When suppressed.
    Where it appears upon the trial that the testimony of a witness taken by commission was given under written memoranda, or directions sent to him in behalf of a plaintiff before his deposition was taken, the judge lias the power to suppress it.
    Appeal from a judgment of the special term dismissing the plaintiff’s complaint upon the merits.
    
      Frederick W. Hinrichs, for app’lt; James M. Hunt, for resp’t, Charles Huns; .John H. Corwin, for resp’t, Harris.
   Macomber, J.

The only question before us is one of fact. The learned judge at the trial, evidently upon an attentive examination of the evidence, has dismissed the complaint upon the merits.

The ground upon which it was.- sought to set aside the assignment made to the defendant Harris by the defendant Anderson for the benefit of creditors, was that the respond- 0 ent Charles Huns was preferred m the sum of $2,000 more than was the actual indebtedness of the assignor to him; and that there hqd been an unlawful and fraudulent disposition of funds of the assignor, immediately prior to the assignment

The clear weight of the evidence shows that both of these grounds of assault upon the assignment are untenable. It is conclusively established that the indebtedness of the firm to Charles Muns was §9,000, being $2,000 in excess of the sum for which he was preferred in the assignment.

Several unimpeached and apparently just witnesses show that the other claims against the validity of the assignment were untenable, and that there was no unlawful payment of funds of the firm preceding the assignment.

Against the evidence upon, which the learned judge at special term has rested his decision, there is substantially the unsupported testimony of Adolph Anderson alone. His deposition was taken by "commission at Hew Orleans. It appeared upon the trial that such • testimony was given under written memoranda or directions sent to him in behalf of the plaintiff before his deposition was taken. Had this ’ been known before trial, it would have been sufficient to suppress the deposition.

On the whole we are- inclined to think, when such fact was made to appear at the trial, the judge had the power then to suppress it. But this proposition is unimportant now, in view of the final disposition that was made of the case by him. The judgment should be affirmed with costs.

Van Brunt, Ch. J.. and Bartlett, JJ., concur.  