
    Paul Wilcox and Charles A. Brodek, Respondents, v. Max Stern, Appellant.
    
      Commission to take testimony, denied where facts are admitted'—when denied
    
    
      because of laches.
    While a commission to take testimony is usually granted as a matter of course, it will not be granted where the opposing party stipulates to' admit all the facts which the issues permit to be proved.
    A motion for a commission to take testimony made by the defendant in an action in October, 1903, after the case has been placed upon the calendar for trial, should be denied on the ground of laches, where it appears that in the spring of 1908 the plaintiffs informed the defendant that they would agree to an open oral commission to be executed during the summer, and that the defendant did not avail himself of such offer.
    Appeal by the defendant, Max Stern, from 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 12th day of October, 1903, denying the defendant’s motion for a. commission to take testimony without the State of New York.
    
      Robert Goeller, for the appellant.
    
      Henry Brill, for the respondents.
   Hatch, J.:

The parties to this action entered into a written contract which gave to the plaintiffs the sole and exclusive right to sell a certain patent within a given date and at a specified minimum price. ' If the sale was made by the plaintiffs during that period, they became entitled to receive one-fourth of the¡ proceeds of the sale, and in any event, upon a sale, they were to receive the sum of $1,750. The contract was in the form of a letter, written by the plaintiffs to the defendant and sent to the latter in Germany where it was received by him. Under date of December 30,1902, the defendant by letter confirmed the receipt of the contract and accepted its terms. This letter was mailed by defendant December 30', 1902, and received by the plaintiffs January 17, 1903. On January 8, 1903, and before the letter of acceptance of the contract had reached the plaintiffs, the defendant made a sale of the patent, and on the last-named date cabled to plaintiffs a cancellation of his letter of acceptance, which cable was received on the same date. A letter from defendant followed this cable, under date of January 9, 1903, reiterating the cancellation and giving fuller details of the transaction. This action is brought to recover the $1,750 as damages for a breach of the contract. The complaint contains two causes of action. One upon a quantum meruit for work, labor and services performed in .and about the carrying out of the contract, and the other to recover damages in a like sum for a breach of the same. The present appeal is to be disposed of upon a consideration alone of the second cause of action ; as the plaintiffs upon the argument of the appeal have stipulated to rely upon the second cause of action only. The action was commenced on January 31, 1903, while the defendant was temporarily within this country. Issue was joined therein by the service of an answer on May ninth following. In October, 1903, the plaintiffs moved the cause upon the short cause calendar for trial; and thereupon the defendant’s attorney procured an order to show cause why a commission should not is^ue to take the testimony of the defendant and two witnesses, named as John Doe and Mary Doe.

The moving papers were in form sufficient as to the defendant to entitle him to the issuance of a commission. As to the other names, they are not only fictitious, but no facts are stated in the moving papers showing that the examination of any other person is necessary or material to the issues joined; consequently, the motion is to be disposed of solely upon the right of the defendant to have his testimony taken. (Lazarus v. Schroder, 49 App. Div. 393.)

The plaintiffs in the opposing affidavits show that the defendant’s attorney informed them in the spring of 1903 that he was intending to apply for a commission to take the testimony of the defendant in Berlin. Thereupon one of the plaintiffs informed him that he would agree to an open, oral commission, to be executed in the summer in Berlin, as one of his legal friends would be in that city at that time and would attend upon the examination, and the defendant could be orally examined under an open commission. Nothing came of this proposition, and the defendant’s attorneys permitted the matter to rest and made no move to procure a commission until the case was moved upon the ¡short cause calendar in October, when the order to show cause was procured, and with it an injunctive order staying the plaintiffs' from proceeding with the case until the determination of that motion. When the motion came on to be heard, the plaintiffs stipulated to produce upon the trial all of the original letters and the cablegram received from the defendant, and further stipulated that annexed to the papers upon the motion was a full,true and correct copy of all of the correspondence between the parties, by letter or otherwise, and that the respective letters and cablegram were mailed and received, at the times specified. By virtue of this stipulation the defendant became entitled to have the whole of the correspondence received in evidence and considered as a part of his defense. It appears from such correspondence that the cablegram canceling the letter of acceptance of the contract was sent by the defendant and'received by the plaintiffs'before the receipt by the plaintiffs of the letter of confirmation. It is not pretended that there is any ambiguity in the contract, and as the acts of the parties are all disclosed and consisted of the several writings, the rights of the plaintiffs upon the one part and of the defendant upon the other became practically questions, of law,- and especially so when there is eliminated from the issues the first cause of action as stated in the complaint. The learned court below concluded, therefore, that the stipulations protected all of the defendant’s rights, and, consequently, denied the motion. We think the'determination was proper. While" it is true that a commission is usually granted as matter of. course, yet where it appears that the party may have the benefit' of all the facts which the issues between the parties permit, there is no basis for the issuance of a commission as no further evidence bearing upon the issues will be developed therefrom. But in addition to this we think the application was properly denied for laches. The defendant had full opportunity to have his testimony taken by open commission in the summer of 1903 by the stipulation the plaintiffs. He did not avail himself of such offer, but lay quietly by until the defendant had regularly noticed and moved the cause upon the calendar, and then procured the order and stayed the plaintiffs’ proceedings, . Under the circumstances of' this case we think this was such laches as justified a.denial of the motion.

It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

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

Order affirmed, with ten dollars costs and disbursements.  