FORM No. 1442.

Right to cross-examine.71

The [adverse party] shall have leave to cross-examine, orally, the said M. N. [may fix expense upon cross-examining party in a proper case, as: provided said [adverse party], within days, stipulates to pay to said all the expenses of the commission attendant upon such cross-examination. In such case said [applicant] may subject any witness so cross-examined to an oral re-direct examination, said [applicant] to pay the expenses of such re-direct examination as well as of the examination on the original direct interrogatories.

FORM No. 1443.

To speed the commission.

This motion is granted upon condition that the [applicant] serve upon the adverse party the proposed interrogatories within days from the date of this order; and on the further condition that if the cross-interrogatories be served within days after service of the direct interrogatories, the commission be issued within days after settlement of the direct and

cross-interrogatories.

FORM No. 1444.

To speed the examination.

mission,

This order is made upon condition that the [applicant] give to the [adverse party], within days after the issue of the comdays' notice of the time and place of the examination of said witness; and that the said examination be continued and concluded without unnecessary interruption or delay.72

FORM No. 1445.

Leave reserved to apply for cross-commission.

It is further ordered, that said [adverse party] shall have days, after notice of the return of said commission, to determine whether he desires to examine other witnesses, and to apply for leave to issue a commission for that purpose.

71 Laidley v. Rogers, 22 N. Y. Supp. 468, 23 Civ. Pro. Rep. 110; Smith v. Tallmadge, 3 Monthly L. Bul. 97. See, also, Form No. 1447.

Where a party is to be examined in

his own behalf, a proper case for oral cross-examination is presented. Wainwright v. Low, 49 Hun, 283, 1 N. Y. Supp. 786.

72 Estate of Kendall (above cited).

FORM No. 1446.

Limited stay.

[Substitute for stay in Form 1438, as thus:] It is further ordered, that the trial of this action [or, all proceedings on the part of in this action] be and hereby are stayed for

weeks only after the issuing of the commission.

FORM No. 1447.

Order to show cause why the witness should not be cross-examined orally.73 [Caption as in Form 819 or 820, p. 1174 of this volume.] On reading the affidavit of A. B., annexed:

ORDERED, that the defendants show cause why the witnesses named in the order for commission made in this action, on the day of 19, should not be orally cross-examined on the part of the plaintiff, and leave to so cross-examine be granted to the plaintiff; and why, unless the defendants consent to such oral cross-examination, the order for commission should not be vacated; and why such further or other relief should not be granted to the plaintiff as may be just.

Service of this order, on or before the shall be sufficient.

day of

[Authentication as in Form 818, p. 1173 of this volume.]

FORM No. 1448.

Order absolute thereon.74

[Caption and recitals as in Form 819 or 820, p. 1174 of this volume.]

ORDERED, that the counsel for the respective parties, or either of them, be and they are hereby authorized and allowed to attend before the commissioners upon the execution of the commission granted by order made in this action on the

day of

19 , and orally examine and cross-examine said witnesses, or either of them; such oral examination to be reduced to writing by the commissioner, and annexed to, and returned with, and as part of said commission. It is further ordered, that at least two days' previous notice, in writing, of the time and place of

73 Should only be allowed when special circumstances are shown which require it for the party's protection. See Woodward r. Skinner, 92 N. Y. Supp. 259. See, also, notes to Form No. 1442.

74 Supported by Clayton r. Yarrington, 16 Abb. Pr. 273, note; and approved by Anderson r. West, 9 Abb. Pr. (N. S.) 209. But in Deshon . Pockwood, 16 Abb. Pr. 272, note, a similar application was denied.

executing said commission, be served by the attorneys for the defendants on the plaintiff's attorney. It is further ordered, that in case the attorneys for the defendants, who moved for the commission, do not, within ten days after the service of a copy of this order, elect, and serve notice of such election on plaintiff's attorney, to permit the counsel for the plaintiff to examine said witnesses, and each of them, orally, as authorized by this order, and to comply with the terms and conditions hereof, then the order, made at Special Term, on the day of 19 granting a commission, be, and the same is, hereby vacated. The said order, made at Special Term, on the

day of

is hereby modified in accordance with this order.

[Authentication as in Form 818, p. 1173.]

19,

FORM No. 1449.

Stipulation for issue of commission to take testimony without the State.75 [Title of court and cause.]

*

It is hereby stipulated that a commission issue herein to C. C., Esq., of , counsellor-at-law, to examine on oath [in case of a specified witness, continue as in Form 1438, from the to the ; or, in case of an open commission, as in Form 1498, from the * to the t].

An order may be entered accordingly by either party without notice.

The interrogatories and cross-interrogatories to be administered shall be as follows [stating them].

[Add directions as to execution and return.] [Date.]

[Signatures of], Attorney for plaintiff. Attorney for defendant.

[File with clerk, and enter order thereon.76]

75 May take place of affidavit and notice of motion. N. Y. Code Civ. Pro., § 908.

76 Ford v. Williams, 24 N. Y. 359, 366.

Entry of an order was said to be necessary to a commission issued on stipulation in Mason & Hamlin Co. v. Pugsley, 19 Hun, 282; but the court there put its decision in part on the ground that in that case there had been no stipulation.

In Churchill v. Carter, 15 Hun, 385. order was held unnecessary, and a stipulation that "the annexed commission do issue," was held a waiver of a seal; and that the omission of any allowance by the court, or signature of the clerk, was not ground for excluding it.

Another convenient form is to draw up the order in full and append a consent to its entry. Vol. I, p. 211.

FORM No. 1450.

Order for commission thereon.

[Title of court and action.]

On reading and filing the annexed consent of the attorneys for the parties hereto, dated the

day of

on motion of A. T., attorney for [plaintiff]:

19, and

ORDERED, that a commission issue directed to [name] to examine on oath [continue as from the asterisk in Form 1438 or 1498. [Date.] [Signature and title of clerk.]

FORM No. 1451.

Interrogatories on commission; settled by consent.

[Title of court and cause.]

Interrogatories [and cross-interrogatories] agreed to be administered to M. N., a witness to be examined in this action, under the annexed commission.

FIRST INTERROGATORY [and so on, as in Forms 1452-1462. FIRST CROSS-INTERROGATORY [and so on, as in Forms 14631466.]

The above interrogatories [and cross-interrogatories] are hereby agreed upon saving all exceptions to the competency thereof, and of the answers thereto, as evidence in this cause as though the same had been settled by a judge of this court [and cross-interrogatories are waived].

[Date.]

[Signature of], Attorney for plaintiff.

[Signature of], Attorney for defendant.

FORM No. 1452.

Proposed interrogatories on commission.77

[Title of court and cause.]

Interrogatories to be administered to M. N., of

19

witness to be examined, under the commission directed to be issued by order entered herein on the day of proposed on behalf of the plaintiff [or, defendant], in the aboveentitled cause.

FIRST. What is your name, age, occupation, and place of residence?

77 Serve on the adverse party with

the notice of settlement as in preceding Form.

SECOND. Do you know the parties above named, or any of them? If yea, which of them, and how long have you known each of them?

THIRD. [Here insert any question appropriate to the cause,78 see Forms 1453 to 1462 (below).]

LASTLY. Do you know of any thing concerning the matters in question, that may tend to the benefit and advantage of the plaintiff [or, defendant]? If yea, declare the same fully and at large, as if you had been particularly interrogated concerning the same.79

[Or in U. S. Court in equity:80 Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer.]

[Annex documents to be identified, if any.]

[Signature and office address of], Attorney for [moving party].

[Serve on adverse party within ten days after entry of order allowing the commission.]81

[Cross-interrogatories must be served within ten days after service of proposed interrogatories.]82

N. Y. Central, etc., R. R. Co., 79 N. Y. 175. The judge on the settlement has no power to pass on the competency of any question. Wanamaker v. McGraw, 168 N. Y. 125.

Incompetent matter contained in an answer may be objected to at the trial, although no objection to the interrogatory was made, or motion to suppress the deposition. Wanamaker t. McGraw, supra.

79 This interrogatory is proper (except in the United States court in equity, see below). McCarty v. Edwards, 24 How. Pr. 236. And under it the witness may testify to any facts

pertinent to the issue, whether relating to matters partly brought out under the preceding interrogatories, or not. Percival v. Hickey, 18 Johns. 257. And even matters to the detriment of the party moving the commission. Van Ness v. Bush, 14 Abb. Pr. 33, 22 How. Pr. 481.

Where it does not appear that the last general cross-interrogatory was put to and answered by the witness, the deposition cannot, in general, be read; otherwise if counsel were present. Brown v. Kimball, 25 Wend. 259; Kimball v. Davis, 19 id. 437. But the remedy now would be by motion to suppress, or re-execute.

80 Rule No. 71, U. S. Court Rules in Equity. If no answer is given the deposition is fatally defective. Dodge v. Israel, 4 Wash. C. C. 323.

81 Gen. Rule No. 20, as adopted in 1904. 82 Id.