
    Alexander Duer Irving and Others, Appellants, v. Royal Exchange Assurance of London, Respondent.
    (No. 2.)
    First Department,
    November 22, 1907.
    Deposition — exclusion of interrogatories not pertinent—power sparingly exercised — cross-interrogatories allowed.
    A judge in settling interrogatories to be annexed to a commission to take testimony under section 892 of the Code of Civil Procedure may disallow questions not pertinent and may determine the pertinency of questions proposed.
    
      But the power to exclude questions should be sparingly exercised, as it is difficult to foresee what evidence the exigencies of the trial may render competent, and because under the statute either party at trial may take any objection to questions and answers which could have been taken if the witnesses were-testifying orally.
    Although a plaintiff has taken out a commission to examine witnesses on interrogatories, he should not be denied the right to insert cross-interrogatories in a subsequent commission taken out by the defendant to examine the same and other witnesses.
    Appeal by the plaintiffs, Alexander Duer Irving and others, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of August, 1907, as disallows certain cross-interrogatories proposed by the plaintiffs to be annexed to a commission.
    
      George A. Strong, for the appellants.
    
      Frederick B. Ocmrvpbell, for the respondent.
   Per Curiam :

This action was brought to recover damages for the breach of a contract. After issue had been joined the defendant obtained a commission to take, upon written interrogatories, the testimony of certain witnesses residing in London, England. The plaintiffs proposed certain cross-interrogatories which the court at Special Term refused to allow, and the plaintiffs appeal from the order.

Unless the interrogatories to be annexed to a commission are' settled by consent of the parties they must be settled in the manner prescribed by the General Rules of Practice. (Code Civ. Proc. § 891.) The interrogatories when settled must be annexed to the commission and “ either party must be allowed to insert therein any question pertinent to the issue which he proposes.” (Code Civ. Proc. § 892.) Under the section last cited, the judge in settling the interrogatories has authority to disallow questions not pertinent, and this necessarily implies that he has the power to determine whether a question proposed is pertinent or not. (Uline v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 175.) In. the case just cited, the court held that the power to exclude questions should be sparingly exercised for the reason that a judge cannot always foresee precisely what evidence the exigencies of the trial may render proper. Bot only this, but the statute (Code Civ. Proc. § 911) reserves the right to either party to make at the trial any objection to questions or answers which he could make if the witness were testifying there orally, and for that reason there is no necessity for determining with that same degree of accuracy that a judge would at the trial whether a question is pertinent, or not. . Of course, if a question is clearly not pertinent, competent or material, then it should not be allowed ;■ but unless these facts do appear, then the same ought to be allowed and the. objection raised, if at all, at the trial. '

Here, all the plaintiffs’ cross-interrogatories were disallowed. It appeared that the plaintiffs had taken out a commission to examine, upon written interrogatories, all .of the witnesses except one, Megaw, whom the defendant sought to examine, and the learned judge who made the order from which the appeal is taken thought, as appears from his opinion, that because of that fact the plaintiffs ought not to be permitted to cross-examine the same witnesses when their testimony was sought/to be taken by the defendant on an independent. commission, or to examine Megaw, because they could have included him in their commission ■; and he permitted them, if they saw fit- to do so, to so amend their commission. Obviously, the order cannot stand. The judge could not deprive the plaintiffs of the right to cross-examine the witness Megaw by compelling them to call him as their own witness. Bor could he deprive them of the right to cross-examine the other witnesses. The fact that they had taken out a commission to examine them is of no importance, because the section of the Code above .referred to (892) specifically provides, as we have seen, that either party must be allowed to insert therein any question pertinent to the issue which he proposes.”. . The questions here proposed, which were' disallowed, and of which the plaintiffs complain, would seem to be pertinent to the' issue, and if the answers to such questions are not pertinent, then the rights of the defendant can be protected at. the trial either by objections or motions to strike'out.

The order, in so far as appealed from, therefore, shoidd be reversed, with ten dollars costs and disbursements, and the matter remitted to the Special Term with direction to settle the interrogatories in accordance with this opinion.

Present—Patterson, P. J., Ingraham, McLaughlin, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and interrogatories settled as stated in opinion. .Settle order on notice.  