
    (76 Misc. Rep. 576.)
    JOHN J. DALY IRON, STEEL & METAL CO. v. UNITED STATES METAL & MFG. CO.
    (Supreme Court, Appellate Term, Second Department.
    May, 1912.)
    Depositions (§ 37*)—Motion foe Commission.
    Where defendant moved in October for a commission to take testimony, and established a prima facie case, to which plaintiff filed no affidavits in opposition, and the case was not tried until December, an order denying the motion, without stating any grounds, would be reversed.'
    
      •For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
      [Ed. Note.—Eor other cases, see Depositions, Cent. Dig. § 52; Dec. Dig. § 37.*]
    Appeal from Municipal Court, Borough of Brooklyn, First District.
    Action by the John J. Daly Iron, Steel & Metal Company against the United States Metal & Manufacturing Company. From an order denying defendant’s motion for a commission to take testimony of witnesses, it appeals.
    Reversed.
    Argued before KELLY, JAYCOX, and CLARK, JJ.
    Charles J. Hardy, for appellant.
    Lawrence T. Grosser, for respondent.
   PER CURIAM.

As to the appeal from the order, there is nothing to show why it was refused. Defendant made out a prima facie case for a commission. The order recites the motion and affidavits, and that plaintiff’s attorney was heard in opposition, and then denies the motion—no ground stated and no affidavits in opposition.

Respondent says no appeal was taken from the order, but he is wrong. Notice of appeal, with his admission of service, is returned. The motion for commission was made in October. The case was not tried until December. The evidence sought was material. One of the issues in dispute was the weight of the material delivered. While it is true the plaintiff claimed that the test was the weight when loaded in Long Island City, and these witnesses unloaded the freight at the point of delivery, it would! seem that in any event the evidence was admissible. But no reason is given for denying the motion to which defendant appears to have been entitled under Municipal Court Act (Laws 1902, c. 580) §■§ 205-207.

Defendant claimed under the printed order blank that it was the weight at the mill which governed. Order says payment to be made hy mill returns. Plaintiff claimed that the written part of the order, providing for delivery on board at Long Island City, governed. Without passing on this question, we think the evidence was admissible.

Order denying motion for commission reversed, with $10 costs to appellant.

Order reversed, with $10 costs to appellant.  