
    Wallace et al. v. American Linen Thread Company, appellants.
    
      Practice—appealaUe order.
    
    An order refusing to grant a commission to take the testimony of a foreign witness affects a substantial right, and is appealable.
    
      Treadwell v. Pomeroy, ante, p. 470, distinguished.
    Appeal from an order of the special term denying a motion for a commission to take the testimony of a foreign witness. The facts appear sufficiently in the opinion.
    
      John Cochrane, for appellant.
    
      JE. F. Bullard, for respondent.
   Per Curiam.

We are of opinion that an order denying a motion for a commission to-take the testimony of a foreign witness is appeal-able. Such an order affects a substantial right. The denial of the application may prevent the party from establishing his case or defense by depriving him of the only means of getting his evidence before the court. We held in Treadwell v. Pomeroy, ante, page 470, decided-at the present term, that an order granting, a commission is not appealable, but the distinction is obvious. The granting of a commission cannot affect prejudicially a substantial right, because no party can be said to have such a right to prevent his antagonist from obtaining, in the ordinary forms of law, the testimony of witnesses whom he is unable to produce personally upon a trial. In this case the court denied the motion on the ground that the testimony sought was irrelevant. If it were clearly so, the discretion of the court would have been properly exercised. But we are of opinion that the testimony would not be wholly irrelevant. It might be important on the question of damages, and its admissibility for other purposes may depend upon the circumstances arising in the course of the trial. The discretion of the court is a judicial one, and is liable to be reviewed. The order should be reversed with $10 costs of-the appeal and disbursements therein, and the order for commission granted.

Order reversed.  