
    Parker et al. v. Lythgor et al.
    
    
      (Supreme Court, General Term, First Department.
    
    February 11, 1891.)
    Appeal from special term, New York county.
    Action by John Parker and another, executors, etc., of James Linden, against Mark Lythgoe and others, impleaded with Jane Smith, brought to obtain a judicial construction of the will of plaintiffs’ testator. Defendants Mark Lythgoe and others appealed from an order granting a commission to examine Jane Smith and other witnesses residing in New Zealand, on interrogatories to be annexed to such commission. For former report, see ante, 95, 787.
    Argued before Van Brunt, P. J„ and Daniels and O’Brien, JJ.
    
      J. A. Skinner, for appellants. B. Vanderhoven, for respondents.
   Per Curiam.

We think the defendants should not be deprived of the opportunity to give such testimony as they may be able to procure for the purpose of establishing their rights which are sought to be cut off by this action. It may be that in a commission, with interrogatories, the rights of the appellants are not sufficiently protected, as they cannot anticipate the nature of the testimony which will be brought out from the witnesses whom it is sought to examiné upon the part of the defendants. If, therefore, the appellants desire that an open commission should issue for the examination of the witnesses upon the part of the defendants, instead of a commission upon interrogatories, they should be granted the opportunity which an open commission affords them. They should also be allowed to call such witnesses as they may produce before the commission, and examine them, without their being named in the commission; the respondents to have the privilege of calling witnesses in addition to those named in the commission, in answer to the evidence adduced by the witnesses produced by the appellants. If the appellants desire that the order for the commission should be modified in this respect, the respondents must stipulate that an order may be entered in accordance with these suggestions, or the order granting the commission will be reversed, with $10 costs and disbursements; and upon such stipulation being given, if the appellants so desire, the order will be modified in accordance with the views herein expressed, and as modified affirmed, without costs to either party. If, however, the appellants do not desire an open commission as suggested, the order appealed from should be affirmed, with $10 costs and disbursements.  