
    John Jerome Deery, Respondent, v. Elizabeth M. Byrne and Others, as Executors, etc., of John Byrne, Deceased, Appellants.
    First Department,
    June 7, 1907.
    Deposition— commission to examine foreign witnesses on oral questions granted — when moving party required to advance necessary expenses of adversary. . •
    A commission to take- testimony upon oral questions may issue by consent, of parties or by order of the court in a1 reference to determine a disputed claim against an estate pursuant to section 2718 of the Code of Civil Procedure.,
    An application to examine foreign witnesses upon- oral questions or for an' open ' commission which neither names nor limits the number of witnesses'will be closely scrutinized in order that the place of trial be not changed to another forum,' ■ and in order that the adverse party be not put to expense .or inconvenience. ' 1
    But the court should be liberal in allowing the testimony of designated witnesses to be taken, on oral questions w.hen the ends of justice will be subserved thereby. *
    When, however, it does not appear that the evidence could- not be elicited on written interrogatories, the granting of a commission to take testimony on oral questions should be conditioned on the plaintiff's paying in advance the reasonable expenses to which his adversary will be put, including counsel fees.
    Appeal -by the defendants, Elizabeth M. Bryne and others', as executors, etc., from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of May, 1907, granting plaintiff’s motion that a commission issue to C. O. Templeton, Esq.-, of Tyrone, Penn., to take the depositions of four witnesses whose .names are specified, upon oral questions. • .....
    
      Edward J. McGuire, for the appellants.
    
      Herbert D. Cohen, for the respondent.
   Laughlin, J.:

This is a. reference by agreement, pursuant to section- 2718’of the Code of Civil Procedure, of a disputed claim against an estate, which makes it an,action in the Supreme Court in which an issue of fact has been joined. The Legislature has expressly prescribed in section 893 of the Code of Civil Procedure that where an issue d • of fact has been joined in an action pending in the Supreme Court a commission may issue by consent of the parties or by order of the court without such consent, to take the depositions of witnesses without the State upon oral questions. The authority to issue commissions applies to actions instituted under said section 2718 of the Code of Civil Procedure, as this was, as- well as to actions begun by service of a summons. (Paddock v. Kirkham, 102 N. Y. 597.) The court properly scrutinizes an application for a commission to examine witnesses without the State upon oral questions, or for an open commission authorized by section 891 of the Code of Civil • Procedure, which neither requires that the witnesses be named nor limits their number, to the end that a party having the election whether to bring an action here or elsewhere should not be permitted, after bringing the action, in this jurisdiction, to transfer the place of trial to another forum, and to the end also that the adverse party should not be put to the expense or inconvenience incident to the proper execution of such commissions where it can be fairly seen that a commission on written interrogatories will fully answer the ends- of justice. (Ordway v. Radigan, 114 App. Div. 538; Frounfelker v. D., L. & W. R. R. Co., 81 id. 67.) In any case where the testimony of a witness is taken by commission, whether ■ upon' written interrogatories, or in the form of a deposition on oral questions-, or ■ under an open ' commission, neither the court nor the jury has an opportunity to scrutinize the testimony of the witnesses by their appearance or conduct upon the stand. That objection to the issuance of a commission applies alike to the various' classes of commissions authorized. The, commissions which have heretofore been regarded with disfavor by the courts are open commissions in which no' witnesses are named and where there is no limit to the number that may be produced or examined by either party (Code Civ. Proc. § 894) ; but the courts have not always discriminated between those and commissions to examine designated witnesses on oral questions, and they are often erroneously classed together; We are of opinion that, in many cases the ends of justice will be subserved by a liberal exercise of the authority to issue commissions to take the testimony of designated witnesses on oral questions, due regard being had, however, to the rights of the adverse party. When it becomes necessary to take the testimony of a witness without the State, it is apparent that the' class of commission to be issued must rest in judicial discretion to be exercised according to the particular facts presented! There is less likelihood that a witnéss will testify falsely if examined orally than if examined on written interrogatories, ' and if he should it is more likely that a cross-examination orally will be effective than if it be confined to written interrogatories. The only serious objection to issuing a commission to examine designated witnesses on oral questions is the expense to which the adverse party may be subjected in sending counsel' familiar with the fact's to attend the execution of the commission, and it may well be that in ..some instances it would be necessary for the party or for one representing him, familiar with the subject-matter of the litigation, to likewise attend in order that his counsel might be" enabled to properly cross-examine the witnesses. These objections may be met, according to. the justice of the case and in the discretion of the court, by requiring the moving party to pay a reasonable amount for such expenses as a condition of granting the commission upon oral questions, instead of upon written interrogatories. In the case at bar the plaintiff had no election as to his forum. He was obliged to sue the estate here, and it is doubtful whether the material evidence could be obtained on written interrogatories. It is essential to his cause of action to show the genuineness of the signatures to many documents in the possession of the- Equitable Trust Company, of Philadelphia, Penn., and to examine the witnesses with reference thereto.' This, of course, can only be. done intelligently by the presence of the. original papers. If the commission were limited to written interrogatories, it is apparent that difficulty might be encountered in getting the original documents before the witnesses. We are of opinion, therefore, that it was proper to issue a commission to take the depositions of the witnesses upon oral questions, but as it does not clearly appear that the evidence could.not be elicited on written interrogatories, we ^ think it should have been upon condition that, plaintiff should pay in advance the reasonable expense to which the defendants will be put thereby, including counsel fee, and that the order should have been in the alternative, that the commission to examine the witnesses upon oral questions issue upon the payment of the allowance for such expenses, the amount to be fixed by the court and specified in the order within a period of time to be therein specified, in default of which the commission should issue upon written interrogatories.

It follows that the order should ■ be modified, without costs, as indicated in this Opinion, -the amount to be paid for such expenses to be determined on the settlement of the order. . ■

Ingraham, Clarke, Scott and Lambert, JJ., concurred.

Order modified as directed in opinion,, without costs. Settle order on notice.  