
    MERINO v. MUNOZ.
    (Supreme Court, Appellate Division, First Department.
    July 9, 1901.)
    Depositions—Order for Commission—Modification.
    Where, on application by a nonresident plaintiff for commission to examine nonresident witnesses, the opposing affidavit avers that plaintiff has purposely omitted his name as a witness to embarrass defendant in obtaining certain evidence in his possession, the order granting the commission will be modified by requiring plaintiff’s name inserted, unless he stipulates to be present at the trial for examination.
    Appeal from special term, New York county.
    Action by Pedro A. Merino, as surviving partner of Pedro N. Merino & Sons, against Leontine G. Munoz, as executor, etc.,, of Jose M. Munoz, deceased. From an order granting plaintiff’s motion to take testimony on commission in England, defendant appeals. Modified.
    Plaintiff, who resided in London, England, applied for commission to take the testimony of certain witnesses in London. In defendant’s opposing affidavit, which it was claimed was not contradicted, it was contended that plaintiff was in possession of documentary evidence essential to the defense, and purposely kept his name out of the commission, to put obstacles in the way of defendant’s examining him or obtaining the use of such evidence. The order granting the commission omitted the substitution of plaintiff’s name, and defendant appealed.
    Argued before VAN BRUNT, P. J., and PATTERSON, O’BRIEN, INGRAHAM, and LAUGHLIN, JJ.
    Henry Major for appellant.
    James L. Bishop, for respondent.
   PER CURIAM.

We think that this order granting plaintiff’s motion for a commission to England to take testimony should be modified by requiring the plaintiff to stipulate that he will be present upon the trial for examination, or, if he is to remain in England, that his name be inserted in the commission as one of the parties to be examined there, so that the defendant may obtain the benefit of his examination, and of the production of such documents as he may have which are material and relevant to the issues.

Order modified accordingly, without costs. .  