
    Moses M. Valentine and Jacob Rabinowitz, Respondents v. Isaac E. Rose, Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Laches in applying for a commission —It must be shown that no bad faith exists. \
    Mere delay in an application for a commission to take testimony may not amount to laches where no rights of the adverse party are affected and where the facts do not warrant an inference of bad faith; but where the delay, under the particular circumstances of the ease, does suggest an inference of bad faith, the commission will not be issued unless the inference is explained away by the moving party.
    Appeal by defendant from an order of the City Court of the city of New York, denying his motion for a commission to take testimony.
    
      Maurice S. Hyman, for appellant.
    Jacob Fromme, for respondents.
   Bisohoff, J.

The defendant’s motion for a commission to take testimony of witnesses, disclosed to be material, was made returnable on the 7th day of September, 1904, and was denied upon the ground of laches. It is insisted by the appellant that since no stay was applied for, and since the commission could have been executed and returned before the first Monday of October, the court improperly exercised its discretion adversely to the application. We think there is no error in the disposition made of the motion.

It appears that this action had been for more than two years at issue and had appeared on the calendar for trial at the February Term, 1904; that the trial was then postponed, at the defendant’s request, until the March term, and ultimately appeared on the day calendar for trial on the 16th day of June, 1904, when an inquest was taken because the defendant was not then ready for trial. Subsequently, on motion of defendant, the default was opened on terms which included the defendant’s stipulation to try the case on the first Monday of October. The motion for a commission having been made returnable on the seventh of September, and the witnesses to be examined being residents of Texas, it is apparent that only with the utmost expedition, and with the intervention of no possible circumstances leading to delay, which might arise without the active fault of the parties, but the possibility of which should be taken into account, could this commission be executed in such season as not to delay the trial.

The plaintiffs were entitled to have the action tried as stipulated, without being subjected to further possible delay, and, while no stay was asked for, the court below was justified in reaching the inference that there was bad faith in the making of the application at a date so close to the stipulated time of the trial. Mere delay in an application for a commission may not amount to laches where no rights of the adverse party are to be affected and where the circumstances do not warrant an inference of bad faith (Margulies v. Damrosch, 24 App. Div. 15), but where the delay, under the particular circumstances of the case, does suggest an inference of bad faith, the inference should be met by matter of explanation if the party applying for the commission is to be granted the relief sought. Rathbun v. Ingersoll, 2 J. & S. 211. Here there is no explanation, and the tona fides of the defendant is left in such apparent doubt as to justify the exercise of discretion in the denial of the motion.

Order affirmed, with costs and disbursements.

Freedman, P. J., and Fitzgerald, J., concur.

Order affirmed, with costs and disbursements.  