Jemison v. Citizens' Savings Bank , 31 N.Y. Sup. Ct. 350 ( 1881 )

Brady, J.:

The commission issued in this ease was authorized by sections 898 and 894 of the Code of Civil Procedure, but the power exercised was one which had theretofore been asserted and maintained. The appeal taken from the order granting it cannot be sustained, this court having declared in three adjudicated cases, and in several not reported, that an order allowing a commission to issue is not appealable. The question is with us, therefore, res adjudicata. (Thatcher v. Bennett, cited at page 555 of Voorhees’ Annotated Code [ed. 1870], referred to and approved in Treadwell v. Pomeroy, 2 N. Y. S. C. [T. & C.] Rep., 470; Wallace v. American Linen Thread Company, 46 How. Pr., 402.) These adjudications render it unnecessary to treat the subject elaborately, as the reasons upon which the judgment of this court is based are to be found in these cases. They have not yet been overruled by the Court of Appeals. We have not been referred to any decision bearing directly upon the question.

There are a class of cases in which, although the court below may have acted in the exercise of its discretion, an appeal from the order made may be successfully taken, but this is not one of them.

Whatever inconvenience the defendant may be subjected to by the issuance of an open commission must be experienced also by the plaintiffs, and it becomes the duty of both, under such circumtances, for the protection of their respective rights,. to see to it that each of them is properly represented at the examination of the witnesses.

There are many cases in which an open commission must con tribute to the administration of justice, and although we do not deem it necessary to consider the merits of the application upon which the order appealed from rests, yet, nevertheless, this may have been a case in which the issuance of the commission was eminently proper. Indeed we are bound to assume that it was such or it would not have been granted.

The appeal should be dismissed, with ten dollars costs and the disbursements of the appeal to abide the event of the action.

Davis, P. J., and Daniels, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.