Kaempfer v. Gorman. or writing, or vouchers in the hands of the party paying or advancing the money. Moreover, entries of cash transactions could be fabri cated with much greater safety and with less chance of the fraud being discovered than entries of goods sold and delivered, or of services rendered. It would be unwise to extend the operation of the rule admitting a party's books in evidence beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent. Parties are now competent witnesses in their own behalf. A resort to books of account is thereby rendered unnecessary in the majority of cases. We think the ledger was erroneously admit[14] ted in evidence, and the judgment below should, therefore, be reversed and a new trial ordered. All concurred except MAYNARD, J., taking no part. KAEMPFER, RESPONDENT, v. GORMAN, AS SHERIFF, ETC., APPELLANT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; FEBRUARY, 1892. $$ 887 et seq. Commission-when open not granted. An open commission should not be granted except under exceedingly peculiar circumstances, as by such commission frequently the place of trial is virtually transferred to a foreign jurisdiction. Kaempfer v. Gorman. In an action for trespass committed within this state, the defendant will not be permitted to examine witnesses without the state orally simply because the witnesses proposed to be examined are hostile to him. Parker v. Lythgoe (13 N. Y. Supp. 949) distinguished. (Decided February 18, 1892.) Appeal by the defendant from an order of the New York county special term in so far as it denied a motion for an open commission. The facts are stated in the opinion. Abraham L. Jacobs (W. L. Stillings, attorney), for defendant, appellant. Benno Loewy, for plaintiff, respondent. VAN BRUNT, P.J.-It is apparent that an open commission should not be granted except under exceedingly peculiar circumstances, because, by such a commission, frequently the place of trial is virtually transferred to a foreign jurisdiction. The papers in this case present no special reasons for the granting of such extraordinary relief, except the fact that the witnesses proposed to be examined are hostile to the defendant, and that, therefore, it is necessary to examine them orally. Where a party is called upon to justify against a trespass committed within this state, we do not think that the plaintiff should be required to attend by counsel the taking of testimony in another state, and that the ordinary means of taking the testimony of witnesses should be resorted to, and not an open commission. The case of Parker v. Lithgoe (13 N. Y. Supp. 949) is cited as an authority to support the application in question. Upon an examination of that case, it will be seen that it is no authority whatever for the contention of the defendant. Kaempfer v. Gormai. It is simply in harmony with the cases of Clayton v. Yarrington (16 Abb. Pr. 273) and Anderson v. West (9 Abb. Pr. N. S. 209). In the case of Parker v. Lithgoe a commission had been ordered, and an appeal taken from the order grant ing the commission. The court was of opinion that the commission should issue; but they gave the right to the opposite party, if they desired, to have an open commission, in order that they might produce such witnesses as they chose, and examine them orally. If they did not desire an open commission, they were under no necessity to accept it; and, if the respondents did not desire that the defendants should have this privilege, then the appellants could not get it, unless they persisted in their motion for a commission. In the other cases cited, leave was given to crossexamine witnesses orally where a commission had been issued, and that was all. It will thus be seen that the question as to the oral examination of witnesses has in all cases depended upon the desire of the party moved against; and this court, at least, has not ordered any such commission, simply because it was more convenient and considered desirable by the party moving. The order should be affirmed, with $10 costs and disbursements. PATTERSON and O'BRIEN, JJ., concurred. Fromme v. Listler. FROMME, APPELLANT, v. LISTLER, RESPONDENT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM: FEBRUARY, 1892. §§ 803 et seq. Inspection of documents-affidavit when insufficient-showing merits. The petition or affidavit upon which an application is made for the inspection of an instrument should be made by the party to the action on whose behalf the claim is made, or his failure to make it should be sufficiently excused; it is not sufficiently excused by the mere fact that he does not reside in the county where his attorney resides. On an application by the defendant for an inspection of a document, he must show merits. (Decided February 18, 1892.) Appeal by the plaintiff from an order of the New York county special term allowing the defendant an inspection of an alleged copy of a contract referred to in the complaint and said to be in the possession of the plaintiff. The facts are stated in the opinion. Abraham L. Fromme, for plaintiff, appellant. Horwitz & Hershfield, for defendant, respondent. VAN BRUNT, P.J.-The complaint alleges in substance that by an instrument in writing the assignor of the plaintiff was employed to procure a purchaser for certain Fromme v. Listler. property, and that therein a certain compensation was promised; that a purchaser was procured and the compensation earned; and that prior to the commencement of the action an assignment of the claim was made, and judgment is prayed for. The defendant, before answer, made a petition asking for an inspection of the agreement. The petition was sworn to by the attorney, and not by the defendant, and simply alleged that the agreement was not set forth in the complaint; that it related to the merits of the action, and was indispensable to the deponent for the preparation of the answer; that the agreement is in the possession of the plaintiff or his attorney, and the attorney has been requested to allow the deponent to inspect the same, which was refused; that deponent had no copy of said instrument in his possession, and is informed by the defendant that he has no copy thereof, and does not know the terms and conditions thereof, or whether the plaintiff has performed the same as alleged in the complaint. In the jurat of the petition it is stated that the reason the attorney makes the affidavit is that defendant. does not reside in the city and county of New York, where deponent resides, but that defendant informed deponent that he had no copy of the instrument, and does not know the terms and conditions thereof. No affidavit of merits accompanies the papers, and upon this petition an order was granted for the inspection, and from such order this appeal is taken. In the first place there is no sufficient reason why the affidavit was not made by the defendant. The mere fact that the defendant does not reside in the city and county where the attorney resides is no ground whatever for accepting an affidavit from the attorney. The statement might be entirely true, and the defendant have been in the company of the attorney when he made the affidavit. In applications of this character the person to make the affidavit is the party to the action; and there must be |