
    JONES v. HOYT.
    
      N. Y. Superior Court;
    
      General Term,
    
    
      February, 1882.
    Depositions.—Open Commission.—Appeal.
    Under section 894 of the Code of Civil Procedure, the granting of an open commission rests largely in the discretion of the judge, and his decision should not be disturbed on appeal unless ft clearly appears that such discretion was unwisely exercised.
    
    In an action for breach of warranty and false representations, the facts that the witnesses, sought to be examined in behalf of plaintiff, had sustained long continued business relations with defendant, supplemented by moro or less of friendship, and were unwilling and reluctant to testify,—Held, sufficient to authorize the granting of an open commission.
    David Jones brought this action against Jesse Hoyt and others to recover damages for breach of warranty and false representations upon sales of barley. He subsequently died and the present plaintiffs, his executors, were substituted.
    Plaintiffs moved at special term for an open commission to examine witnesses in the city of Milwaukee, Wisconsin. The principal affidavit, after the usual allegations as to the condition of the action, the materiality of the witnesses, &c., alleged as follows:
    “ VII.—Deponent further says, that there are other witnesses in the city of Milwaukee, in the State of Wisconsin, whose testimony is necessary and material for the trial of this action, but whose names deponent has been unable, after due diligence, to obtain, and whose precise place of employment in said city, deponent after due diligence has been unable to ascertain. That all the witnesses named in the annexed affidavit of Samuel B. Ford, except William Young, are unwilling and reluctant witnesses for and on behalf of the plaintiffs, and will avoid testifying to the facts within their knowledge respecting the issues in this action unless the same can be elicited from them by an oral cross-examination, as deponent is informed and verily believes.
    “ That the witnesses whose names your deponent is unable to obtain, as above stated, are unwilling and reluctant to testify for or on behalf of the plaintiffs, and the means by which the plaintiffs have learned that said witnesses possess any material knowledge respecting the issues in this action, have been by the casual and involuntary remarks of said witnesses and that an oral crossr-examinatioh of said witnesses is, as your deponent is informed and verily believes, absolntely necessary in order to obtain a full and truthful statement of the facts within their knowledge relative to the issues of this action.
    “VIII.—That, the plaintiffs, as executors, are not conversant with the facts and circumstances out of which the cause of action, as alleged in the complaint, arose, and are considerably embarrassed in the prosecution of the same. That witnesses resident in the city of Milwaukee, who, during the lifetime of said David Jones were willing to answer questions and state facts within their knowledge regarding the issues of this action, are now reticent and reluctant to give the executors any information whatever in regard to the same, as your deponent is informed and verily believes.
    “ IX.—Your deponent further says, that it is necessary for the prosecution of this action, and for the furtherance of the ends of justice, that an open commission should issue out of this court, directed to some suitable person resident in the city of Milwaukee, authorizing him to examine orally, relative to the issues of this action, any witnesses who may be produced by either party.
    “Deponent further says that, under the circumstances in this case, a commission authorizing the taking of depositions or the answering of interrogatories to be here settled, will not meet the requirements of this case, nor can the plaintiffs thereby obtain from the several material witnesses as aforesaid, a full and impartial statement of the facts within their knowledge.
    “X.—Deponent further says, that plaintiffs have caused the utmost efforts to be made to find some person residing in this State who has sufficient knowledge of the facts they expect to prove by the witnesses residing in the State of Wisconsin, as aforesaid, and that they have not succeeded, and that there are no persons now residing within this State, to the knowledge of plaintiffs or deponent, by whom such facts or any of them can be proven.”
    The defendants in opposition alleged that their firm had dissolved, and denied knowledge of any facts which would render the witnesses unwilling or reluctant.
    The court granted the motion, and from the order entered thereon, this appeal was taken by the defendants. . ,
    Further facts sufficiently appear from the opinion.
    
      Stephen A. Walker, for appellants.
    
      Martin J. Keogh, for respondents.
    
      
      Compare Jemison v. Citizens’ Bank, &c., 85 N. Y. 546, reversing 24 Hun, 350.
    
   Russell, J.

Section 894 of the Code has made an innovation upon the former practice. It provides:

61 Where an issue of fact, joined in an action, is pending in either of the courts specified in the last section, the parties may stipulate, in writing, or the court, or judge thereof, may in its or his discretion, upon the application of either party, and upon satisfactory proof, by affidavit, that one or more witnesses not within the State are material and necessary in the prosecution or defense of the action, make an order upon such terms as it or he deems proper, directing that an open commission issue or that depositions be taken as prescribed in the following sections of this article.”

This section gives a very large discretion to the judge to whom such an application is presented. While the exercise of such discretion may be the subject of an appeal, it ought not to be disturbed unless it is quite clear to the appellate court that the discretion was unwisely exercised. We do not think that is shown in this case. The nature of the action charging fraud was such that witnesses who might be entirely willing in an ordinary action ex contractu, would be unwilling where their testimony might be injurious to a friend.

While it is claimed, on the part of the appellants, that the business relations of all the witnesses alluded to, but one, with the defendants’ firm have terminated, it may very well be that from a long business intercourse, supplemented by more or less of personal intercourse and friendship, the witnesses would not be disposed to go beyond the strict letter of their com: pulsory duty in giving testimony in aid of a stranger as against their friends. At any rate there was enough in the suggestion to justify the judge at special term in deciding that this was a proper case for the issuing of an open commission.

No question was made upon the argument, or could have been made, as to the materality of the witnesses.' It was simply a question whether the witnesses should be examined by the somewhat clumsy methods of a sealed commission, with its interrogatories and cross-interrogatories, or an oral examination, such as is had of witnesses who present themselves in court. That the latter is the more reliable way in which to arrive at the truth, all will agree.

There is not much force in the suggestion made that an open commission will tend to transfer the trial of this action to another State. That would be as true if a sealed rather than an open commission were to issue, and the question presented to the judge was whether that trial, or so much of it as it should be necessary to have in a foreign jurisdiction, should, under the circumstances, be conducted in one or another manner, as best calculated to elicit the truth. We,do not think he erred in his judgment.

The order should be affirmed, with costs and disbursements.

Fbeedmah and Aexoux JJ., concurred.  