
    John Stapleton, Respondent, v. Mazie N. La Shelle, as Executrix, etc., of Kirke La Shelle, Deceased, Appellant.
    (No. 1.)
    First Department,
    February 21, 1908.
    Deposition —• examination of foreign witnesses on interrogatories — oral cross-examination.
    When a commission to examine foreign witnesses on interrogatories has been returned duly executed pending an appeal from the order allowing it, which appeal is based upon the ground that the defendant being an executrix of the decedent against whom the claim was presented, should have been allowed to cross-examine the witnesses orally, they being hostile, the order should be affirmed, with leave to the defendant to issue a new commission for an oral cross-examination of (he witnesses, should it appear upon an examination of the prior' testimony that such examination is necessary.
    
      Appeal by the defendant, Mazie H. Lá Shelle, a)^ executrix, etc., from .an- order of the Supreme Court, made at the New York Special ■ Term and entered in tbe office of the clerk of the county of New York on the 10th day of December, 1907, granting the "plaintiffs ." motion for the "issuance of a ■ commission to examine a witness ■ without the State. •
    
      Martin L. Stover,, for.'the appellant,
    
      Benno. Boeioy, for' the respondent.-
   Ingraham, J.:

This is an appeal from an order ■ granting" a motion for a commission, to examine a witness on behalf of the plaintiff in the State of California. ' From the facts that appeared in the moving papers the plaintiif was entitled to the order, the claim of the" defendant being , that she was executrix of the decedent against whom the claim . was presented; had" no knowledge of any "contract between -the plaintiif and her testator; that the witnesses that were to be exam- . ined were hostile witnesses, and that it was quite impossibledor her to frame cross interrogatories, and she, therefore, "asked that an open commission issue. In view of ■ this condition the'court might well have allowed" the defendant to cross-examine the witnesses orally,_ but such right does not seem to have.been asked for, the demand being that the testimony should have all been taken under .an open Commission, which was not necessary so far as- the direct interrogatories were concerned. It was stated on the argument of this appeal .that the coinmission has been returned duly executed, and it nan be ascertained whether the further cross-examination óf the witnesses is required; - ■

The order should, therefore, be affirmed without prejudice to an application by the" defendant, to the Special Term for leave to issue a new commission to orally cross-examine the witnesses if it should •. appear after an examination of the testimony as taken in the coin- • mission returned that such cross-examination - is necessary. Ho - ■ costs of this appeaf. ,

Patterson, P. J., Lattghli-n, Clarke and Houghton, Jj,, concurred.

Order affirmed, without prejudice to application, as indicated in ■ opinion., Settle order P.n notice. " . .-  