
    Union Square Bank of the City of New York, Respondent, v. Theodor Reichmann, Appellant, Impleaded with Others.
    
      Letters rogatory — distinguished from a commission — they aré to he executed according to the practice of the foreign court — a deposition in German, sustained — motion to suppress for improper execution, necessm'y — Code of Civil Procedure, §§ S3, 910, 913.
    Letters rogatory are derived from the civil law and aré properly executed according to the practice of the foreign court to which they are directed.
    While the Code of Civil Procedure prescribes the specific manner in which a, commission shall be executed, it contains no provision as to the manner in, which letters rogatory shall be executed, nor are such letters mentioned in it.
    It is not a valid objection to a deposition taken in Austria pursuant to letters rogatory, directed to any judge or tribunal having jurisdiction of civil causes at Yienna, empire of' Austria, that, although the interrogatories were settled in the English language (it not appearing in what language they were propounded or answered) they and the answers thereto appear in the deposition in the German language.
    Where it is claimed that such letters have been improperly executed, the person objecting to their execution, if he wishes to take advantage of such, defect, should move to suppress the deposition; it is too late to raise such a question upon the trial of the action.
    Appeal by the defendant, Theodor Reichmann, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of December, 1893, xipon the verdict of a jury rendered after a trial at the New York Circuit.
    
      William H. Maginnis, for the appellant.
    
      A. L. Fromme, for the respondent.
   Williams, J. :

The action was brought upon a promissory note made by the firm of Bostwick, Reiclc & Co. The issue of fact tried was whether the appellant was a member of that firm. Upon the trial, counsel for the appellant offered in evidence his (appellant’s) deposition taken in Austria under letters rogatory issued and sent to an Austrian ■court or judge thereof. The deposition was objected to on the ground that the inten’Ogatories were put and answered in German while the interrogatories as settled were in English only. The ■court sustained the objection, stating as grounds for the ruling that it appeared the interrogatories were settled in the English language only, and that there was no order of the court directing or permitting the translation thereof into any other language, and that they were translated, and'that the answers were taken down in German only, it being .admitted that the appellant was familiar with the English language. Neither the questions nor the answers contained in the deposition are before the court, and we do not know whether the evidence was material or necessary for the appellant upon the trial of the issue of fact submitted to the jury, but we must assume that the evidence was important and that its exclusion, if erroneous, so injuriously affected the appellant as to require a reversal of the judgment and the direction of a new trial. No suggestion was made at the time of the trial that the evidence in the deposition was immaterial. No objection of that kind was made or ruled upon, and no claim was made upon the argument in this court that there was the absence of anything in the record to show that the evidence was important or that the appellant was prejudiced by the exclusion of the deposition. It does appear that the interrogatories annexed to the letters rogatory were settled in English, and there was no provision anywhere, as to their being executed or returned in any other language than English. If also appears that the interrogatories were translated into German. It does not appear in what language the interrogatories were propounded to the appellant or in what language he made the answers, but the answers were written down and returned to this court in German only.

The respondent contends that section 22 of the Code of Civil Procedure requires all records or other proceedings in court, except where otherwise especially prescribed by law, to be in English, and that the answers returned to these interrogateri.es, being in German only, were not admissible in: evidence under this provision. It is also argued that it was improper and irregular to execute these letters rogatory by taking down and returning the answers in German only, inasmuch as the interrogatories were settled in English only, and not in German under the provision of section 912 of the Code of Civil Procedure. It may well be doubted whether the provisions of section 22 of the Code have any application to the letters rogatory; but even if they have, and even if the execution of the letters, by taking and returning the answers of appellant in'German only, was improper and irregular, still the remedy of the respondent was by motion to suppress the deposition under the provisions of section 910 of the Code of Civil Procedure, and it was too late to raise the question at the trial. Those provisions are that, when it appears by affidavit that a deposition has been improperly or irregularly takén and returned, an order for the suppression of the deposition may be made by the court upon the application of the party aggrieved, upon notice to the adverse party.

Under these provisions it has frequently been held that, when there has been an ¡opportunity to correct an improper execution of a commission, either by ordering a re-execution thereof, or quashing, the return, no objections because of such irregular or improper execution will be heard on the trial.

In Wright v. Cabot (89 N. Y. 570-577) one of plaintiffs, examined under commission, on cross-examination was requested to annex copies of letters constituting a correspondence to the commission. The witness annexed extracts from the letters, and not the Whole of' the same. On the trial the plaintiff read these extracts in evidence under an objection and exception by the defendants. It was held, that the defendants were undoubtedly entitled to have the whole of the letters, and not extracts, but if they so desired their remedy' was by.motion, in advance of the trial, to have the error in the execution of the commission corrected, either by annexing the full letters,, or striking out the extracts, or suppressing the deposition, and not having resorted to that remedy, they must be held to have assented to the mode in which the commission was executed and returned ^ that this rule was reasonable and just. (See, also, in Sturm v. Ins, Co., 63 N. Y. 77-87; Sheldon v. Wood, 2 Bosw. 267; affd., 24 N. Y. 607.)

This principle is applicable to the questions raised with reference to the improper execution of these letters rogatory and the return of this deposition. If it was improper or irregular to translate the interrogatories into German, and to take the answers thereto and return them to this court in German only, these were defects and irregularities which the respondent was well aware of before the trial, and if he was not satisfied with such execution of the letters rogatory and return of the deposition, it was his privilege to bring the matter to the attention of the court, under section 910 of the Code of Civil Procedure, by an application to suppress the deposition. Not having availed himself of this remedy, he must be held to have assented to the manner in which the deposition was taken and returned. Such a rule is just and reasonable, is supported by authority, and should have been adhered to in this case. The objection to the deposition for this reason was improperly sustained and the deposition excluded.

We cannot, however, assent to the proposition that there was any improper or irregular execution of the letters rogatory, or taking or return of the deposition.

It will be observed that section 913 of the Code makes no provision as to the manner in which the letters. rogatory shall be executed or the deposition taken. The provision is only as to the manner in which the interrogatories shall be settled and the -deposition taken thereunder returned, that is, as prescribed with respect to commissions. The interrogatories were settled and, so far as appears, the deposition was returned as prescribed by law, except as to the language in which the answers were written. The language used in putting the questions, in giving the answers and in writing them down in the deposition, were matters relating to the execution of the letters rogatory rather than to .the return of the deposition. The Code makes absolutely no provision as to the manner in which the létters rogatory shall be executed; and this omission can hardly be regarded as an oversight when we consider the nature of such letters rogatory, as they have been defined by the authorities and in the text books of law.- The letters rogatory issued in this case indicate the true rule as to the execution thereof. They are directed to “ any judge or tribunal having jurisdiction of. civil causes at "Vienna, Empire of Austria,” and they expressly state: “We, therefore, request you that, in furtherance of justice, you will, by the proper and usual process of your court, cause such" witness * * * to appear before you, or some competent person by you, for that purpose, to be appointed and authorized, at a precise time by you to be fixed, and there to answer, on his oath or affirmation,- to the several interrogatories and cross interrogatories hereto annexed, and that you will cause his deposition to be committed to writing and return to us, &c., * * * ' and we shall be ready and willing to do the same for you in a similar case when required.”

No attempt was made to prescribe the manner in which the letters rogatory were to be executed. The Code does provide as to a commission, and the commission is required to direct the specific manner in which it shall be executed, while there is no such provision or direction as to letters rogatory. The Code itself gives us no information as to the nature of letters rogatory, and we must, therefore, assume that the Legislature inserted this provision in the Code, having in mind the nature of letters rogatory as ordinarily understood in legal literature. • .

Letters rogatory are derived from civil law, and the practice under them is regulated by the civil law. They are largely made use of in Courts of Admiralty. They are issued by the courts of one country to" the courts: or judge of another country. Weeks, in his. Law of Deposition (§ 128), says: There is a broad distinction between the execution of a commission and the procurement of testimony by the instrumentality of letters rogatory or requisitory. In the former case, the rules of procedure are established by the court issuing the commission, and are entirely under its control. In the latter the methods of procedure- must, from the nature of the case, be altogether under the control of the foreign tribunal, which is appealed to for assistance in the administration- of justice. We cannot execute our own laws in a foreign, country, nor can we prescribe conditions for the performance of a request which is based entirely upon the comity of nations, and which, if granted, is altogether ex gratia. "* * * We cannot dictate the methods to be pursued by the court whose assistance we invoke. The rules and practices of the foreign court must, be the law of procedure in such cases. Letters rogatory were unknown to the common law. They came to us from the civil law, through ralty Courts, and the civilians appear to agree that, in all that concerns the forms of procedure in such cases, the judge ought to observe the laws of his own country.” (See, also, 13 Am. & Eng. Ency. of Law, 266; 1 Greenl. on Ev. § 820; Bouv. Law Diet.; Nelson v. The United States, 1 Peters C. C. 237; Kuhtman v. Brown, 4 Rich. Law Rep. [S. C] 479.)

In Kuktman v. Brown (supra) the commission was sent to Bremen. The interrogatories were in English. The answers were returned in German, annexed to a German translation of the interrogatories and cross-interrogatories.

Objection was made that the answers should have been returned in English, or accompanied by an English translation thereof, but the court held that tire deposition was admissible in evidence.

We must assume that this deposition was taken according to the practice in Austria, the answers being written in German. Such an execution of the letters rogatory cannot be said to have been improper or irregular if it was in accordance with the usual and customary practice in the Austrian courts. There is no requirement in the Code that the answer shall be returned in English, or accompanied by an English translation thereof. Suppose the court having the execution of the letters rogatory in charge did not understand English and could not write in the English language, could it be said that it had no power to take the deposition ? Clearly not. The deposition might properly be taken and returned in the language it. did use and understand. And we must assume, in the absence of any proof to the contrary, that the language of the court and its proceedings was German.

The deposition was, in either view we have suggested, erroneously excluded, and such error calls for a reversal of the judgment and the granting of a new trial, with costs to the appellant to abide event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  