
    WILCOX v. DODGE.
    
      N. Y. Supreme Court, General Term, First Department ;
    
    July, 1889.
    1. Depositions; settling interrogatories annexed to commission.] Under the general rule that upon the settlement of interrogatories to be annexed to a commission, the judge should allow all questions which are pertinent to the issue, even though a judge sitting at the trial might exclude them—it is not proper upon such settlement to disallow a question, on the ground that the witness is incompetent under Code Civ. Pro. § 829, where it is possible that the adverse party, by introduction of evidence as to the same matters or otherwise, may preclude himself from taking the objection.
    2. The same.] It seems, however, that where it is absolutely certain that the evidence sought by the question could not be introduced on the trial, the court is not obliged to allow it to enable the party to secure the effect which the offer and rejection may have upon the minds of the jury.
    Appeal by defendant from an order settling proposed interrogatories in a commission issued on defendant’s application for the purpose of taking his own testimony, by striking out certain of them.
    
      R. Floyd Clarke (Olcott, Mestre & Gonzales, attorneys) for defendant and appellant.
    
      Howard Payson Wilds (J. B. & H. P. Wilds, attorneys) for plaintiffs and respondents.
   ■ Van Brunt, P. J.

Upon a commission for the examination of one of the defendants upon his own behalf were proposed certain interrogatories to be annexed to the commission, and objection having been taken to such interrogatories upon the settlement thereof, principally upon the ground that they should not be asked under section 829 of the Code, the court made an order disallowing and striking out interrogatories and consequently certain cross interrogatories, and from such order this appeal is taken.

The rule which is to govern in the settlement of interrogatories shows very distinctly that there is a great difference between the allowance of an interrogatory on the preliminary settlement thereof, and the admission of ' the answers to the same in evidence upon the trial (Uline v. N. Y. Central & H. R. R. R. Co., 79 N. Y. 175). In this case it is said that although the judge, in settling interrogatories to be annexed to a commission, is required to allow “ any question pertinent to the issuehe has authority to disallow questions not pertinent to the issue, and hence to determine whether the proposed question is pertinent or not; but that this power should be sparingly exercised, as he cannot always foresee precisely what evidence the exigencies of the trial might render proper. He must also allow all pertinent questions, although a judge sitting at the trial, might in his discretion exclude them.

One of the main grounds upon which the appellant founds his appeal is that he has the right, for the purpose of the theatrical effect to be produced upon the jury, to ask questions which - he knows must necessarily be excluded at the time at which he puts them. This affords no ground whatever for reversing the ruling which was made in the court below in respect to the interrogatories. The court is mot obliged to go through the idle form of allowing interrogatories to be put when it is absolutely certain that the •evidence thus elicited by the interrogatories can never be" introduced upon the trial.

But there is a substantial reason why it would appear that the ruling of the court was erroneous. In the first place it is not at all certain that upon the trial the objection that the evidence comes within section 829 of the Code will be made, or if made, that it must necessarily be sustained.

The witness is a competent witness and his evidence can be excluded only upon objection being taken that the case comes within the purview of section 829. And there are circumstances where, during the progress of the trial the party seeking to avail himself of section 829 may be precluded from the benefit of the protection granted by this section, because of the introduction of evidence upon his own part.

Now it is impossible for the court to say whether during the progress of the trial such circumstances may not arise as will authorize the defendant-to introduce this evidence.

Such being the fact, although it may appear that such evidence cannot be admitted if the objection is taken under section 829, yet it is not absolutely certain but that it may become competent in consequence of something that takes place upon the trial.

Under these circumstances, therefore, there seems to be no reason for anticipating that which may or may not happen upon the trial. No harm can possibly be done by allowing the defendant to put these interrogatories, and if the proper objections are raised upon the trial, the judge presiding can afford ample protection to the plaintiffs.

We think, therefore, that the interrogatories should not have been stricken out, but should have been allowed subject to legal objections to be taken at the trial.

The order should be reversed with $10 costs and disbursements and the interrogatories and cross interrogatories allowed subject to all legal objections to be taken upon the trial.

Beady and Baeeett, JJ., concurred.  