
    Joseph Lentilhon et al., Resp’ts, v. Williamson Bacon, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    Depositions—Open commission.
    An open commission to examine .witnesses should not he granted on motion of the plaintiff without the strongest and most convincing reasons. The mere fact that the witnesses to be examined sustain business relations and are on friendly terms with the defendant, and would be unwilling witnesses for plaintiff, is not sufficient to warrant such an order.
    Appeal from order of special term, directing the issuance of a. commission to také testimony upon oral interrogatories. The for the order was made the following affidavit:
    “Joseph Lentilhon, being duly sworn, deposes and says (1) that he is one of the plaintiffs in the above entitled action, and that all the parties thereto are of full age and competent. (2) That issues of fact have been joined herein by the service on the 24th day of February, 1892, of the defendant’s answer to the complaint herein. That the said cause has been placed upon the general calendar of this court, and is numbered 3,939, and that the next circuit of this court is appointed to be held on the first Monday of October next. (3) That the action was brought to recover the sum of $16,230.52 and interest alleged to be due from the defendant to the plaintiffs, and which -(or any part whereof) said defendant promised and agreed to pay to the plaintiffs when it was in his power so to do. That deponent is informed and bell eves that the said defendant has it in his power to pay said sum so due as aforesaid, but that he refuses to pay the same, or any part thereof, although payment thereof has been demanded. (4) That the issues of fact are substantially as follows: First. Whether or not the above named defendant has it in his power to pay the said sum of $16,230.52 and interest, or any part thereof. Second. Whether the said action is barred by the statute of limitations.^ (5) That deponent has fully and fairly stated the case in this action to-James G. Jane way, Esq., his counsel, who resides at No. 131 East Nineteenth street, in the city of New York, and has fully and fairly disclosed to him the facts which he expects to prove to substantiate the affirmative of the first and the negative of the second of the foregoing issues, and that he cannot safely proceed to the trial of the action without first obtaining due proof thereof by the examination of persons who are or have been residents of the states, of Missouri and Kentucky, as he is advised by his said counsel after such statement, and verily believes. - (6) That, in order to enable deponent to sustain the affirmative of the first of the said issues herein mentioned in the fourth paragraph of this affidavit, it will be necessary for deponent to show the financial condition and ability of the defendant and the nature and extent of the property of which he is possessed ; and, to sustain the negative of the second of said issues, to show how long the defendant has been possessed of such property, and how long it has been in the power of the defendant to pay the claim of the plaintiffs herein, or some part thereof, and when the cause of action herein accrued by reason of the ability of the defendant so to do, and the residence and absence of said defendant without the state of New York. That the defendant lives, and for a considerable time has lived, in or near the city of St. Louis, in the state of Missouri, and been engaged there in the prosecution of business and in the acquisition of property. (7) That deponent expects to be able to prove by the following witnesses the nature and extent of the property of the-defendant, and when and how the same was acquired, and also the-facts relating to the residence of the said defendant, to wit: The said defendant, Williamson Bacon; Moses Greenwood, Jr., areal estate agent employed for some years last past by the defendant, and! William J. Burton, a bookkeeper of the Tyler estate, in which-said defendant is interested, and of which he is manager, as deponent is informed and believes; Samuel Hoffman and James B„ True, respectively president and cashier of the Laclede National-. Bank of St. Louis, of which said defendant is a director, and in which he owns or holds stock, as deponent is informed and believes; Julius Walsh and Breckenridge Jones, respectively president and secretary of the Mississippi Valley Trust Company of St. Louis, of which said defendant is a director, and in which he owns or holds stock, as deponent is informed and believes; C. 0. Rainwater, John D. Perry and John H. Overall, respectively president, treasurer and secretary of the St. Louis Merchants' Bridge Terminal Railway Company, in which said defendant owns or holds stock, as deponent is informed and believes : E. A Hitchcock, C. W. Barnes and E. T. Allen, respectively president, treasurer and secretary of the Crystal Plate Glass Company, in which ¿aid company said defendant owns or controls stock, as deponent is informed and believes. That all of said above-mentioned persons reside or transact business in St. Louis, Missouri, as deponent is informed and believes. (8) That in the nature of. the case, the defendant will be an unwilling witness for plaintiffs, and it will be impossible to obtain from him, by examination on written interrogatories, a full and fair statement of the facts known •to him relating to the issues in the action. (9) That, as deponent is informed and believes, all of the above-mentioned persons sought to be examined by plaintiffs have sustained long continued business relations with the defendant, and are more or less on .friendly terms with the defendant That, as deponent is informed .and believes, all of the aforementioned persons are unwilling and reluctant witnesses for plaintiffs, and will avoid testifying to the .facts within their knowledge respecting the issues in this action, unless the same can be elicited from them' by an oral cross examination. That deponent has caused inquiries to be made of most of ■the aforementioned persons as to the facts within their knowledge, but that the said persons are unwilling and reluctant to give any information whatever, and that an oral cross-examination of said-witnesses is, as yourdeponént is informed and believes, absolutely •necessary, in order to obtain a full and truthful statement of the facts within their knowledge relative to the issues of this action. That, as has been hereinbefore set forth, the persons sought to be examined .as witnesses on the part of the plaintiffs occupy personal and business relations with the defendant, and are unknown to the plaintiffs, .and from the very nature of their relations will be reluctant to assist the plaintiffs, or to give them any information or assistance whatsoever. (10) Deponent is informed that there are other witnesses in the city of St. Louis, in the state of Missouri, whose testimony is necessary and material for the trial of the action, but whose names deponent has been unable, after due. diligence, to •.ascertain. That the facts as to financial condition are in their nature such as cannot reasonably be expected to be ascertained by .an examination on written interrogatories, and that, upon the examination, it will be necessary to introduce in evidence books and entries therein, and to examine the witnesses with reference thereto, to which said books and entries plaintiffs have no means cf access, excepting as they shall be produced on such examination, and as to which they cannot, therefore, frame interrogatories. ■¡(11) That the deponent also expects to prove by the following witnesses the facts with relation to the actual residence and -domicil' of said defendant from the year 1889 to the time of the commencement of this action: Philip H. Zepp, clerk of the circuit court of St. Louis; William A. Hobbs, recorder of deeds of the city of St. Louis; James L. Carlisle, recorder of voters; R. A. •Campbell, controller; John J. O’Brien, president of, board of .assessors. That all of said persons reside in the city of St. Louis, as deponent is informed and believes. (12) Deponent further says that plaintiffs have caused the utmost efforts to be made to find some person or persons residing in the state who have sufficient knowledge of the facts they expect to prove by the witnesses residing in the state of Missouri as aforesaid, and that they have not succeeded, and that there are no persons now residing within this state, to the knowledge of the plaintiffs or this deponent, by ■whom such facts, or any of them, can be proved. (13) Your deponent further says that it is necessary for the furtherance of the ends of justice that an open commission should issue out of this court, directed to some suitable person resident in the city of St. Louis, authorizing him to examine orally, relative to the issues-of this action, any witnesses who may be produced by either party. (14) Deponent further says that, under the circumstances in this case, a commission authorizing the taking of depositions or the answering of interrogatories to be here settled will not meet the requirements of the case, nor can the plaintiffs thereby obtain from the several material witnesses, as aforesaid, a full and impartial statement of the facts within their knowledge, as he is advised by counsel and verily believes. (15} That the defendant resides at St. Louis, and has counsel at that, place, as deponent is informed and believes; and that no injury or extraordinary expenses will result to him because of the taking-of the evidence under an oral commission. (16) That Miss Roberta Tyler, who resides at Louisville, Kentucky, is a sister-in-law of the defendant, and acquainted with facts of his residence, and has made affidavits with regard thereto in other proceedings, and is a material witness for the plaintiffs, as deponent is informed and believes, upon the said question of the residence of said defendant. (17) That this deponent has fully and fairly stated to-his said counsel the facts .which plaintiffs expect to prove by said witness; that said witness is a material and necessary witness for the plaintiffs on the trial of said action, as he is advised by his-said counsel after such statement and verily believes. (18) That, deponent is desirous of taking the deposition of said Miss Roberta. Tyler upon written interrogatories to be settled (19) That the sources of deponent’s information, and the grounds of his belief as to all matters not herein stated upon his own knowledge and information,are communications by letter to deponent’s said counsel by Albert 1ST. Edwards, Esq., counselor .at law, St. Louis, Missouri, whom deponent caused to be employed for the purpose of assisting in obtaining the evidence necessary to sustain the issues-upon the part of the plaintiffs, statements made to deponent by his said counsel and attorneys, besides his own knowledge as such) plaintiff.”
    
      F. E. Blackwell, for app’lt; James G. Janeway, for resp’ts.
   Van Brunt, P. J.

It is the well settled rule that an open-commission should never be granted, except under peculiar circumstances, and certainly not upon the motion of the plaintiff without the strongest and most convincing reasons, as the granting of such a motion upon behalf of the plaintiff would simply be-transferring the trial of the cause to a jurisdiction different from that in which he has seen fit to place the venue. No facts whatever justifying the order in question are disclosed by the papers, upon which this motion was granted. It may be more convenient, for the plaintiffs to transfer the trial of the cause to some other jurisdiction, but this affords no ground for granting this extraordinary relief.

The order should, therefore, be reversed, with ten dollars caste. and disbursements, and the motion denied with ten dollars costs, with leave, upon payment of the costs of the motion of this appeal, for the plaintiffs to move for a commission upon interrogatories.

O’Brien and Lawrence, JJ., concur.  