Roth v. Mautner

Scott, J.:

The defendants were (with others) creditors of one Isaac Chaitin. All of the creditors, including defendants, signed an identical agreement by which they agreed to assign their respective claims .to plaintiff upon the payment of twenty-five per cent thereof. Defendants received twenty-five per cent of their claim, but refused to make assignment thereof ppon the ground that, as they allege, other creditors were secretly paid more than twenty-five per cent.

This action is brought- to compel the assignment of the claim by defendants, and they answer setting up the secret payments to other creditors. The persons to whom it is said such payments were made reside in London and in Leipsic. In April last a motion was made for an open commission, which was denied and the denial affirmed by this court.' (114 App. Div. 904.) At that time the defendants knew the names of the persons to whom and through whom, as they believed, the secret payments had been made, but did not know the facts concerning such payments sufficiently well to frame written interrogatories. When the motion for an open commission was finally denied the defendants went to London and Leipsic, and after some trouble were able to learn sufficient of the facts ■ to enable interrogatories to be framed. Their information upon that subject was communicated to their attorneys, who, with reasonable promptness, applied for a commission. This motion was granted only to the extent of permitting a commission to issue with interrogatories and cross-interrogatories framed in the English language, the application to frame them in both English and German and the application for a stay being denied.

Bo reason appears why the interrogatories and cross-interrogatories should not be framed in both English and German, as authorized by section 912 of the Code of Civil Procedure. It appears by the attorney’s affidavit that he is informed by his clients, who are now abroad and have- seen the witnesses residing in Leipsic, that these witnesses. do not speak nor understand the English language.' Although this is secondary evidence of the fact, it accords with the probabilities and is the. best evidence presently obtainable. If the attorney were required to wait until he could procure properly authenticated affidavits from Leipsic, it Would, necessitate a further postponement of this - application and Very possibly further delay' In the trial of the cause. A reasonable stay should also have been granted. It cannot be fairly said that defendants have been guilty of laches because they have' Waited so dong after the denial of their motion for an open commission. It is .true they then knew the names and residences Of the witnesses whom they desired to examine, and believed that, if permitted to examine them orally, they could elicit the facts which they desired to prove. To frame appropriate written interrogatories to elicit the facts from Witnesses who would probably testify with reluctance was quite another matter, and called for much more definite knowledge on'the part of the questioner than would have been, necessary if the examination had been oral. - The defendants appear to have been reasonably diligent in seeking such knowledge. Unless an applicant for a commission has been guilty of laches or bad faith, it is customary to grant a reasonable stay with the order for a commission. We do not consider, in view of the nature of the case, that the defendants have been shown to'have been guilty of such laches' as to have acted in bad faith, so as to. except them from the general rule. The motion should have been granted.

The order, in so far as it is appealed from, is reversed, with ten dollars costs and disbursements, and the motion granted; the stay' hot to exceed ninety days from the issuance of the commission ; the appellant to pay to' the adverse party the sum of twenty dive dollars foi' the expense of procuring the interrogatories in his behalf to be translated. .• .

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ,, concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to' the extent and on the conditions stated in .opinion, Settle order on notice.