
    Grissen v. Southworth.
    
      (Supreme Court, General Term, Fifth Department.
    
    June 24, 1892.)
    Depositions—Irregularity—When Waived.
    Where the deposition of a witness for defendant is taken in presence of plaintiff’s counsel, and .he then raises no objection to the failure to take a portion of the testimony by question and answer, word for word, as required by the commission, the irregularity must be deemed to have been waived.
    Appeal from special term, Niagara county.
    Action by Frances E. Grissen against Ruth L. Southworth, executrix of the last will of Mortimer M. Southworth, deceased. From an order suppressing the deposition of Mary Lyon, a witness for defendant, taken under a •commission issued at defendant’s instance, defendant appeals.
    Reversed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Charles Hiekey, for appellant. W. H. Hanson, for respondent.
   Per Curiam.

A motion in behalf of the defendant was made and granted ■for the examination”of the witness named at Ovid, in the state of Michigan, upon oral questions to be administered under the direction of Byron V. Soule, a, counselor at law, as commissioner. Such examination was had, and the testimony of the witness was properly returned by the commissioner, and filed witli the county clerk of Niagara county on the 30th day of March, 1892. On the 13th day of April, 1892, the plaintiff served a notice of motion for the 22d -day of that month to suppress such commission, upon the ground that the testimony of the witness was not taken by question and answer, word for word, as is permitted by section 900 of the Code of Civil Procedure, and as was directed by the commission itself. This section of the Code directs, .among other things, that the commissioner must “take down, or cause to be taken down,’’.etc., “the substance of the witness’ testimony, unless he is •directed, in the commission or the order, or required by the person appearing for either party, to insert in the deposition any or all of the questions or answers, word for word.” The direction in this instance, as contained in the •commission, was that the testimony of this witness be taken by question and answer, word for word. In respect to a considerable portion of the testimony of the witness, this direction was not observed; and consequently this •motion to suppress the commission, being made within a reasonable time .after the same was tiled with the clerk, was properly granted, unless the irregularity was waived by the parties. It appears that, at the taking of the •deposition, the plaintiff and defendant were respectively represented by counsel, who conducted the examination. The counsel for the plaintiff is shown to have been employed, not only for this special occasion, but that he was her general counsel, regularly employed. He, with knowledge of the manner in which the commissioner wrote the'testimony, made no objection thereto, and hence, presumably, the commissioner acted with the consent and concurrence of both parties. We are accordingly of the opinion that the omission to object to the course pursued by the commissioner was a waiver •of the direction contained in the commission. In the absence of such direction or request made at the taking of the. deposition, the usual course to be pursued by the commissioner, contemplated by the statute, was to take the testimony in a narrative form. A failure to take it by question and answer, word for word, is an irregularity only, and may be waived by the parties by proceeding before the officer in a different manner than that provided by the ■commission. It follows that the order appealed from should be reversed, and the motion denied, with costs.

Order appealed from reversed, with $10 costs and disbursements of appeal, and the motion denied, with $10 costs.  