
    (100 App. Div. 459)
    MERCANTILE NAT. BANK OF CITY OF NEW YORK v. SIRE.
    (Supreme Court, Appellate Division, First Department.
    January 6, 1905.)
    1. Witness—Absence—Right to Testimony.
    In an action on0 a note, which was being tried before a referee, it appeared that the execution and delivery of the note was the result of an agreement between plaintiff’s assignor and a witness in another state, whose attendance at the trial the defendant was unable to procure; that the determination of the defense set up in the answer depended on conversations between the witness and the officers of plaintiff’s assignor: that the officers of the assignor had testified to such conversations, and that it was essential that defendant have an opportunity of denying the" truth of the conversations. Held, that defendant was entitled to the issuance of a commission to take the testimony of the absent witness, where the only delay would be an adjournment for a few weeks..
    Appeal from Special Term, New York County.
    Action by the Mercantile National Bank of the City of New York against Henry B. Sire. From an order denying a motion for' a commission, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.
    Franklin Bien, for appellant.
    Albert S. Ridley, for respondent.
   INGRAHAM, J.

I think this application should have been granted. It does not seem to be disputed but that the execution and delivery of the note sued on was the result of an agreement between the plaintiff’s assignor and Eeander S. Sire, and that the determination of the defense set up in the answer depends upon the conversations between Sire and the officers of the plaintiff’s assignor; that the officers of the plaintiff’s assignor have testified to conversations with Sire, and that it is essential that the defendant should have an opportunity of denying the truth of these conversations. As the defendant is unable to procure the attendance of Sire in this state, I can see no reason why he should be deprived of Sire’s testimony contradicting the testimony of the plaintiff’s assignor’s officers as to such conversations. There can be no question but that the court has power to issue a commission at any time before the case is finally decided, and, as the case is being tried before a referee, the only delay would be an adjournment for a few weeks until the commission to St. Louis could be returned. The defendant should, however, secure the return of the commission within 30 days of the entry of the order, and the final closings of the reference should not be delayed on account of the commission beyond that time.

It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted. All concur.  