
    Edwin S. Neal and John H. Macy, Appellants, v. George B. Sherriff and Alan A. Swingley, Respondents.
    
      Stay of proceedings where a commission, improperly executed, is suppressed and <z new commission is issued.
    
    "Where a commission to take testimony, relied upon by the defendants to establish their defense, is returned from South Africa improperly executed through the failure of the commissioner to perform his duty, and is for that reason suppressed, a new commission should be issued and a stay of proceedings be granted.
    Appeal by the plaintiffs, Edwin S. Neal and another, from an ■order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1900, granting a commission, with a stay of proceedings until the return of the same.
    
      J. E. Russell, Jr., for the appellants.
    
      Charles Haldane Johnson, for the respondents.
   Hatch, J.:

This action is brought to recover the balance of the purchase price of a quantity of oil shipped by. the plaintiffs to the defendants at Johannesburg, Africa. The defense consists of counterclaims , for rebate on account of shortage in the quantity of oil shipped.. It. appears from the moving papers that one commission was issued to the United States consul at Johannesburg, but that through neglect or failure to understand it, or both, the commission was never properly executed. The matter seems also to have been complicated by a condition of war'in that country. Under ordinary circumstances a stay of proceedings ought not to, be granted in this case; nevertheless the papers show that there has been reasonable diligence upon, the part of the defendants in procuring the commission to be issued, and executed, and that they are in nowise in fault. To deny a stay would have the practical force of striking out the defendants’ answer. They have no witnesses'in this country and can make no-defense unless they procure testimony by commission. The papers, which were returned by the consul show a disregard of his duties as commissioner, and by reason of such fact the commission was suppressed, but the court, in granting the motion, gave leave to move for a further commission,

Upon such application the court below reached the conclusion that the order should be granted with a stay of proceedings until, the return of the commission. While the defendants should not be permitted to unreasonably delay the action, yet, if without serious prejudice to the plaintiffs’ rights, the evidence upon which the-defendants rely can be obtained, a course producing that result, should be followed. It is practically evident that this case cannot, be tried before the fall term of the court. During the intervening-time it is quite probable that the commission can. be' executed and returned; and if it is. not, further delay may well be considered unreasonable. But this will to some extent depend .upon the then, •existing facts. If the commission should then have been executed and was being returned and had not yet reached this country, a basis would exist-for further continuing the stay. We canndt foresee what will be the conditions at the opening of the court in the fall. It is now clearly evident, however, that the duty is imposed upon the defendants of exercising the utmost diligence in procuring the-commission to be executed and returned. Any subsequent application in- respect thereto which they may make to the court it' is quite-likely cannot be based upon legal right, but must be addressed to-the favor of the court, and it is this condition which will require: that they be without fault if another application become necessary. We think the substantial rights of these parties can be preserved by affirming the order below, except to limit the stay of proceedings until the October térm of the court, but without prejudice to the defendants’ right to move at that time for a further stay, as he shall be advised. As so modified the order should be affirmed, without costs of this appeal to either party.

Patterson, Ingraham and' McLaughlin, JJ., concurred.

Order modified as directed in opinion, and, as so modified, affirmed, without costs to either party.  