
    Alfred N. Beadleston, Resp’t, v. Mary E. Beadleston, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    Practice—Examination oh Witness by commission—When open commissions ARE NOT TO BE GRANTED.
    An open commission for the purpose of examining a witness who has already been examined at large, under a commission accompanied with written, direct and cross interrogatories, is properly denied, where no good reason for an open commission is assigned. The proper course would be to apply for another commission, with interrogatories directed to the object of supplying the defect in the evidence of the witnesses.
    Appeal from an order denying a motion made on behalf of the defendant for an open commission to take the testimony of witnesses in the city of Boston (see ante p.).
    
      Eugene D. Hawkins, for app’lt; Samuel Untermyer, for resp’t. .
   Daniels, J.

The witnesses whom it was proposed should be examined under the open commission applied for, had already been examined at large, and their testimony obtained under a commission accompanied with written, direct and cross-interrogatories. The defendant’s counsel desired to examine them further, relating to facts to which their attention had been directed, and to obtain books, deemed to be essential as part of the proof desired to be made. But no good reason was assigned why an open commission should be issued. If the examination of the witnesses was in any respect defective, the more proper course would have been to obtain another commission, with interrogatories, directed to the object of supplying the defect in the evidence of the witnesses. No practical difficulty stood in the way of making this additional examination, and if the books desired could be obtained, of securing their presence before the commissioner. And the motion should be as it was, denied by the court. So much of the order, therefore, as disposed of this motion should be affirmed, but without costs to either of the parties.

Van Brunt, P. J., and Bartlett, J., concur..  