Greenman-Roth v. Carl Marks & Co. , 91 N.Y.S.2d 851 ( 1949 )

Hecht, J.

Defendant moves to suppress a deposition taken of the plaintiff in South America. Defendant consented to the entry of an order for a closed commission and the interrogatories and cross-interrogatories were settled. It appears from the return made by the consul that the party being examined referred to memoranda before answering the questions. Defendant now claims that this was improper and irregular, so as to give grounds for the suppression of the deposition pursuant to rule 133 of the Rules of Civil Practice.

While it is true that on a trial defendant would be permitted to examine the memoranda used to refresh recollection, that would be only for the purpose of cross-examination. The memoranda would not be evidence in itself. Defendant may have lost an opportunity to see these memoranda or to have insisted on exhausting the witness’ recollection first, but that is a vice of closed commissions and does not amount to an irregularity or improper conduct.

There is no merit to defendant's contention as to defendant’s Exhibit 1. That exhibit must have been before the plaintiff, as it was attached to the cross-interrogatories forwarded to the consul and returned with plaintiff’s answers.

Motion denied.