
    Edgar P. Reed, Respondent, v. Albert O. Fenn and Others, Appellants. Gilbert E. Mosher, Respondent, v. Albert O. Fenn and Others, Appellants. Frank H. Downey, Respondent, v. Albert O. Fenn and Others, Appellants.
    Fourth Department,
    May 12, 1910.
    Deposition examination of witnesses upon oral questions — expenses of opposing party — notice.
    The granting of a commission to take testimony of designated witnesses in a foreign State upon oral questions should be conditioned upon the payment of the costs and expenses which will be incurred by the opposing party in attending the hearing to protect his lights.
    An allowance of §100 for counsel fees and expenses of the defendant in attending sucli hearing in three separate actions involving a large amount of money should be increased to §200 and the expenses of one attorney going to and from the place of hearing and while necessarily attending the same.
    Where the testimony of designated witnesses in a foreign State is to be taken without written interrogatories, the requirement of section 899 of the Code of Civil Procedure that the opposing party shall be given at least five days’ notice before the deposition is taken and in addition one judicial day for each fifty miles by the usual route of travel between the residence of the attorneys for the adverse party and the place where the deposition is to be taken is mandatory and a shorter notice is unauthorized.
    Robson, J., dissented.
    
      Appeal in each case by the defendants, Albert O. Fenn and . others, from an order, made at the Monroe- Special Term and entered in the office of the clerk of the county of Monroe, granting a commission upon oral questions to designated witnesses on the application of the plaintiff.
    
      Fred G. Goodwill, for the appellants.
    
      James M. E. O'Grady, for the respondents.
   Spring, J.:

Each action is to recover a large sum, being the purchase price of bonds, upon the ground that the investment was induced by the fraudulent representations of the defendants.

An.order to show cause was granted upon the application of the plaintiff, returnable at a Special Term of this court on the 30tli day of April, 1910, why an order should not be made directing the issuance of a commission to Sears Lehman,-of the city of St. Louis,

in the State' of Missouri, for the examination of five designated witnesses residing in said city. Affidavits in opposition to the application were presented in Special Term upon the return of the order to show cause, and the court made the order directing the commission to issue. The order contained the following provision:

“ This order is made upon condition that the plaintiffs pay to the defendants the -sum of One hundred dollars ($100) as and for the counsel fees and expenses of executing said commission to abide the event of said actions pro rata. The imposition of said terms is, however, conditioned upon the return'of the said commission and depositions thereunder in time to be read upon the trial of the first-of these actions which is tried, and also upon the condition that the defendants accept five days’ notice by mail of the time and place of taking said depositions.” ■

I think the- affidavits were sufficient to justify the court, in its discretion, to order the commission to issue. (Deery v. Byrne, 120 App. Div. 6.)

The allowance made is, however, inadequate and the limitation of the notice to five days by mail unauthorized.

Section 893 of the Code of Civil Procedure provides for the issuance of a commission to examine witnesses “ upon oral questions,” or to take the deposition of one or more witnesses designated in the order “partly upon oral questions and partly upon written interrogatories,” or one or more of the designated witnesses upon oral questions and one or more upon written interrogatories. Section 894 provides for the issuance of an open commission to examine witnesses without the State, and in the granting of which the court may impose such terms as it “ deems proper.” .

There are, therefore, two distinct provisions; in regard to the taking of depositions without written interrogatories. In section 893, where the examination is to be conducted exclusively upon oral questions, the names of the witnesses apparently need not be designated in the order, and in that respect there seems to be no distinction between oral questions and an open commission granted pursuant to section 894. Whether the order permits the examination of designated witnesses orally or the examination of such witnesses as may be produced by either party before the commissioner, the imposition of proper terms should still follow the granting of the order. Primarily the commission should issue upon written interrogatories. If a party to an action desires to depart from this rule, and the personal attendance of the opposing party is deemed desirable or proper, then that opposing party should be paid sufficient for the costs and expenses which will be incurred in order to protect his rights. (Gowans v. Jobbins, 91 N. Y. Supp. 842; Ingham v. Herkimer County Light & Power Co., 125 App. Div. 904; Risley v. Harlow, 105 id. 628; Grant v. Booth & Co., 119 id. 918.)

On the question of notice section 896 is applicable whenever the commission is “to take testimony without written interrogatories” in pursuance of either of the two sections mentioned, and provides, .“notice of tlie time and place of the examination of a witness, by virtue thereof, naming the witness, must be served as prescribed in section eight hundred and ninety-nine of this act.” Section 899 requires notice of the time and place of taking a deposition, “ specifying the name of the witness,” with other requirements noted in the section. It then provides : “ The time for serving such a notice must be, at least, live judicial days before the deposition is taken; and one judicial day, in addition, for each fifty miles, by the usual route of travel, between the residence of the attorney for the adverse party, and the place where the deposition is to be taken.”

This is an imperative requirement of the statute^ St. .Louis is distant 800 miles from Rochester, so that the defendants are entitled . to twenty-one days’ notice of the time and place of taking the deposition, instead of five days as specified in the order. This is a wholesome provision of the statute and still further emphasizes, the proposition that where a party to an action obtains- an open commission or one on oral questions, it is in the nature of a favor to him and the rights of his adversary must be carefully guarded; and whatever reasonable expenses are incurred by reason of this favor must be. assured to him.'

The respondent contends that the appellants asked for the payment of their costs and expenses when not entitled to be reimbursed at all and the court had the power, as. a condition of granting that request, to limit the time of the prescribed notice. As already observed, I think the same rule applies whether the examination is orally made of designated witnesses or orally made of witnesses not named in the order. In the latter case they must be specified- in the notice (Code Civ. Proc. § 899) and as noted- above, this court has uniformly imposed the payment of a sufficient sum.to cover the costs and expenses as a condition of granting such order. In any event, the court exceeded its discretion; for limiting the time to attend the taking of depositions in three important actions to five days, with a hearing 800 miles from the place of trial, is too great a lessening of the prescribed time. The Legislature lias fixed the time for the notice and. that should be adhered to.

The order should be modified by striking out the provisions with reference to allowance for counsel fees and expenses, and also that part requiring the defendants to accept five days’ notice by mail of the time and place of taking the depositions and by substituting in lieu thereof, as a condition of granting the order, that the plaintiffs pay $200, one-third in each action, and the expenses of -one attorney going to and from St. Louis and while necessarily attending the taking of the depositions, and as so modified the order should be affirmed, without costs of this appeal to either party, the form of the order to be settled before. Mr. Justice Spring on two days’ notice.

All concurred, except Robson, J., who dissented.

Order modified by striking out the provisions with reference to allowance for counsel fees and expenses, and also that part requiring the defendants to accept five days’ notice by mail of the time and place of taking the depositions, and substituting in lieu thereof, as a condition of granting the order, that the plaintiffs pay $200, one-third in each action, and the expenses of one attorney going to' and from St. Louis and while necessarily, attending the taking of depositions, and as so modified the order is affirmed, without costs of this appeal to either party. The form of the order to be settled before IVIr. Justice Spuing on two days’ notice.  