
    In re TIFFT’S WILL.
    (Supreme Court, Appellate Division, Fourth Department.
    November 28, 1906.)
    Depositions—Examination op Witness.
    Where, in answer to an interrogatory in a commission to take testimony, the witness stated that the minutes shown her refreshed her recollection as to what a certain person said and did in her presence, of which she took stenographic notes, the facts she could recall should have been stated or read from the minutes shown her, and embodied in her answers to the interrogatories, and where she simply stated that she believed them to be a correct copy of her transcript, and then indorsed the several pages which were certified by the commissioner as exhibits, a further commission should have been issued to have obtained the evidence in-proper form.
    
      Appeal from Surrogate’s Court, Erie County.
    In the matter of proving the last will and testament of James W. 'Tifft. From an order denying contestants’ motion that a further commission issue to examine Florine B. Hatch, the contestants appeal. Reversed.
    Argued before McLENÑAN, P. J., and SPRING, WILLIAMS, NASH, and KRUSE, JJ.
    Helen Z. M. Rodgers, for appellants.
    Carlton E. Ladd, for respondent.
   NASH, J.

The commission was not properly executed. The witness, as directed by the interrogatories, having examined what purported to be volume 1, testimony in the matter of James W: Tifft, reported by Charles H. Bailey, stenographer, from pages 611 to 621, inclusive, stated:

“My recollection is refreshed from these minutes as they were then reported by me, but I cannot now remember the things reported herein in detail.”

These pages of the testimony in the matter of Tifft (pages 611-621) purported to be a copy of stenographic notes of things said and done by Mr. Tifft, stenographically taken by the witness. After stating that her recollection was refreshed, the witness said:

“I believe this to be a correct copy of my transcript, which was handed in to Mr. Moot and inserted in, this record by Mr. Bailey.”

She then indorsed the several pages of the testimony certified by the commissioner as exhibits. The witness should have been required to state whether the testimony shown to her refreshed her recollection as to the things which Mr. Tifft said and did in her presence, of which she took stenographic notes, and, if so, then the facts which she could recall should have been stated or read from the minutes shown her and embodied in her answers to the interrogatories. Marcly v. Shults, 29 N. Y. 346. We think that the contestants should have been permitted to have obtained the evidence in proper form, and therefore the order denying contestants’ motion for an order directing that a further commission issue should be reversed.

Order reversed.

Order reversed, without costs, and matter remitted to Surrogate’s Court for proper action. All concur.  