
    ALEXANDER H. BECKER and JOHN M. BECKER, Plaintiffs, v. ISAAC C. WINNE, Impleaded with JOHN C. STEFFEN, Defendants.
    
      Gommission — irregularities in — must be corrected by motion before trial — Evidence —previous statements of witness examined on commission contradicted — without Ms attention being first called to them.
    
    Irregularities in tlie return to a commission to examine a witness sliould be taken advantage of on motion before trial, when there is abundant time.
    Consent to the issuing of a second commission to examine the same witness is not a suppression of the first.
    Where, on the trial, the defendant gave in evidence, the evidence taken under the second commission, and then the plaintiff gave in evidence, under objection, the evidence taken under the first, held, that the evidence under the first commission was not open to the objection, that the witness could not be contradicted by previous statements made by him, without his attention being first called to them.
    Motion for anew trial ou a case and exceptions, made by defendant Winne, ordered to be heard in the first instance at the Geueral Term.
    
      E. Countryman, for the plaintiff.
    
      Lynes d¿¡ Bowen, for the defendant.-
   Per Curiam:

A commission to examine a witness in this case was issued on the part of the defendant, and returned with the answers to interrogatories and filed. Subsequently another commission to examine tlie same witness was issued, also on the part of the defendant, and returned. On the trial the defendant gave in evidence the evidence taken under the second commission. Then the plaintiff gave in evidence, under objection, the evidence taken under the first. There were three objections :

1. Certain irregularities in the return. Advantage should have been taken of these by motion before the trial, as there was abundance of time.

2. That consent to a second commission was a suppression of the first. By no means. Further evidence might be desired. There was no order for suppression.

S. The witness could not be contradicted by previous statements without calling his attention to the matter. But the evidence taken by the first commission was evidence given on the trial. That is, it was direct evidence in the case; not hearsay or secondary. It was just as if the defendant had called and examined a witness and the plaintiff had cross-examined. And then the plaintiff had, recalled the witness and examined in chief. It is a matter of discretion at the trial.

The motion for a new trial should be denied, and judgment ordered on the verdict, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Motion for new trial denied and judgment ordered on verdict, with costs.  