
    PENNSYLVANIA SUGAR REFINING CO. v. AMERICAN SUGAR REFINING CO. et al.
    (Circuit Court, S. D. New York.
    May 20, 1909.)
    Depositions (§ 84) — Return—Cross-Examination.
    Whore the failure of defendant’s counsel to appear at the taking of a deposition arose from a misunderstanding caused by unwarranted reliance on statements in a letter of the witness’ attorney, and it did not appear that plaintiff would be prejudiced by the return of the deposition for cross-examination, except to the extent of the expense thereof, defendant’s motion for return would be granted on condition of defendant’s paying the charges of the notary and stenographer and a fee of $50 to plaintiff for counsel on such examination.
    [Ed. Note. — For other cases, see Depositions, Dec. Dig. § 84.*
    Irregularities in taking or return of depositions as ground for exclusion as evidence, see note to Columbus Ry. Co. v. Patterson, 73 C. C. A. 608.]
    On Motion for an Order Directing the Return of Depositions to Permit Cross-Examination.
    See, also, 160 Fed. 144.
    
      Battle & Marshall, for plaintiff.
    Parson, Closson & Mcllvaine, for defendants.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   NOYES, Circuit Judge.

It is apparent from the affidavits that the failure upon the part of the counsel for the defendants to appear at the taking of the deposition arose from a misunderstanding. They undoubtedly relied upon the statements in the letter of the witness’ attorney, however unwarranted they may have been. Counsel for the plaintiff acted entirely properly and within their rights in proceeding with the deposition, and were I satisfied that the plaintiff would he prejudiced in any other way than that of expense by a cross-examination at the present time, rather than at the time of the direct examination, I should be disinclined to grant this motion. But after an examination of the deposition I cannot see that the plaintiff will be so prejudiced. The plaintiff, however, should not be put to any expense by this delay.

The motion is granted, and the deposition may be returned for the purpose of permitting the cross-examination and redirect examination of the witness, provided the defendants pay the charges of the notary and stenographer in taking the same, and also pay $50 to the plaintiff for its counsel fees upon such examination. The time for the further examination authorized by this order is fixed for May 27, 1909, at 11 o’clock a. m., at the place named in the original order. The parties are at liberty, however, to agree upon another time. If such further examination be not had, the deposition may be returned in its present form.  