
    John J. Daly Iron, Steel & Metal Company, Respondent, v. The U. S. Metal & Manufacturing Company, Appellant.
    (Supreme Court, Appellate Term, Second Department,
    May, 1912.)
    Motions and orders — in general — motion papers — affidavit — Municipal Court of city of New York.
    Where a defendant in the Municipal Court of the city of New York, on motion for a commission, makes out a prima faoie case, and there are no affidavits in opposition, an order denying the motion without stating the grounds therefor will be reversed.
    Appeal from an order denying a motion for a commission to take testimony of witnesses.
    Charles J. Hardy, for appellant.
    Lawrence T. Gresser, for respondent. .
   Per Curiam.

As to the appeal from the order, there is nothing to show why it was refused. Defendant made out a prima facie case for a commission. The order recites the motion and affidavits and that plaintiff’s attorney was heard in opposition and then denies the motion — no ground stated and no affidavits in opposition.

Respondent says no appeal was taken from the order, hut he is wrong. ¡Notice of appeal with his admission of service is returned. The motion for commission was made in October — the case was not tried until December. The evidence sought was material. One of the issues ini dispute was the weight of the material delivered. While it is true the plaintiff claimed that the test was the weight when loaded in Long Island City, and these witnesses unloaded the freight at the point of delivery, it would seem that in any event the evidence was admissible. But no reason is given for denying the motion to which defendant appears to have been entitled under Municipal Court Act, sections 205—20L

' Defendant claimed under the printed order blank that it was the weight at the mill which governed. Order says payment to he made by mill returns. Plaintiff claimed that the written part of the order providing for delivery on bo&rd at Long Island City governed. Without passing on this question we think the evidence was admissible.

Order denying motion for commission reversed, with ten dollars costs to appellant.

Present: Kelly, Jaycox and Clark, JJ.

Order reversed, with.ten dollars costs to appellant.  