MacDonald v. Garrison , 9 Abb. Pr. 178 ( 1859 )

Hilton, J.

Although it is usual to grant an order for a commission upon the application of either party, when no stay is desired, almost as a matter of course; yet upon the settlement of the interrogatories, the judge, if required, should look into the questions propounded, to see if they relate to the matters at issue, and to be tried in the action.

And it is not necessary upon such occasions to show with absolute certainty that the matters inquired of will be material at the trial; it will be sufficient if a reasonable ground exists for supposing that such will be the case. (2 Rev. Stats., 394, §§ 11, 14, _ .)

_ In the present case no difference exists in respect to the object of the inquiry, or the facts proposed to be proven by the witnesses to be examined under the interrogatories now presented to me by the defendants for settlement.

The conceded object is to show that several years prior to the commencement of this suit, the plaintiff was guilty of certain acts of bad conduct, which were criminally or morally wrong; and it is supposed that the effect of such evidence will be to impeach the credibility and character of the plaintiff, should he offer himself as a witness upon the trial.

The pleadings show that this action is brought to recover the value of certain services alleged to have been performed by the plaintiff at the request of the defendants, and there seems to be no possible aspect of the case in which the testimony sought to be taken by this commission would be admissible, and as the settlement of interrogatories appears to be equivalent to passing upon • questions propounded to a witness when called upon to testify at the trial, I must, for the reasons stated, decline to permit the questions to be put, and refuse to settle or allow the interrogatories presented. (Buller’s Nisi Prius, 296; Peake’s Ev., 140; 1 Greenleaf's Ev., §§ 461, 462; 4 Philip’s Ev. (C. & H., notes, 364), p. 717; Jackson a. Lewis, 13 Johns., 504; Southard a. Rexford, 6 Cow., 255; Corning a. Corning, 2 Seld., 97,104; Newton a. Harris, 75., 345; Commonwealth a. Moore, 3 Pick., 194.)

The application to settle defendant’s interrogatories denied.

The defendants appealed to the general term.

By the Court.—For the reasons assigned by Judge Hilton, at special term, the order appealed from should be affirmed, with $10 costs to abide event.

Order affirmed. .