
    James H. Petter, Appellant, v. Esme D. Matz et al., Respondents.
   Per Curiam.

In the absence of any information from plaintiff as to the status of the depositions already taken, including plaintiff’s own deposition and answers to letters rogatory, Special Term in the interest of justice properly denied the order to permit the commission to be returned partly completed. To grant the order in the absence of such information might result in prejudice. The court was asked to act in the dark, in ignorance of what had actually happened to the commission and letters rogatory.

Long delay has already been entailed, in part by plaintiff’s failure to have the papers in proper form to procure the commission or letters rogatory in the Argentine. On the other hand defendants have also failed to give the court information as to the status of defendants’ deposition or answers to letters rogatory in connection with the examination of defendants’ witnesses and have asked for an opportunity to do so.

The depositions already taken should not be suppressed at least not before the court is informed as to what has been done by each side in the effort to obtain the testimony that each sought in the Argentine and as to the status of the depositions on both sides.

The order appealed from insofar as it denied plaintiff’s motion to procure deliverance of the partly completed depositions should be affirmed without prejudice however to renewal of the motion after the court has been properly informed on the status of the depositions. Both sides should communicate with their representatives in Buenos Aires to ascertain the facts concerning the progress made in taking the testimony and the status of the deposition on letters rogatory and inform the court thereof in connection with renewal of plaintiff’s motion or on an appropriate motion made by defendants. Meantime neither party should force the other to trial without a reasonable time for procuring the necessary information but both sides should proceed expeditiously and without any unnecessary delay.

For the reasons stated the order appealed from insofar as it denied the motion at this time should be affirmed, with $10 costs to defendants-respondents.

Dore, Cohn, Van Voorhis and McCurn, JJ., concur; Peek, P. J., taking no part.

Order, insofar as it denied the motion at this time, unanimously affirmed, with $10 costs and disbursements to the respondents. Settle order on notice.  