HERBERT E. BOWEN, Appellant,
HAVANA ELECTRIC RAILWAY COMPANY, Respondent.
APPEAL by the plaintiff, Herbert E. Bowen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of May, 1911, suppressing certain depositions theretofore taken herein.
John Larkin [Alexander S. Andrews with him on the brief], for the appellant.
Edmund L. Mooney [David T. Davis with him on the brief], for the respondent.
The depositions which have been suppressed were taken in the months of September and October, 1910, before Frank H.
Mason, Consul General of the United States at Paris, France, as commissioner in that city under a commission issued in behalf of the plaintiff, pursuant to an order of the Special Term of this court, made on the 24th day of June, 1910, and, together with the commission, were returned by him to the county clerk of New York county on the sixteenth day of December thereafter. The depositions were given on direct and cross-interrogatories annexed to the commission. The record does not show whether the direct and cross-interrogatories were settled by the court or by consent.
The motion for the suppression of the depositions was made by the defendant on five grounds: (1) That three of the witnesses, namely, Samuel Einhorn, Jacques Kulp and Ernest May, severally, deliberately refused to produce certain documents called for by the cross-interrogatories, and necessary to render their depositions complete and competent; (2) that said three witnesses deliberately refused to answer fully certain cross-interrogatories; (3) that 'the plaintiff and the witnesses were allowed to have counsel while under examination, whereas the defendant was unable to ascertain before whom the commission would be executed or to be present thereat, and the commission was unfairly executed; ' (4) that the commission was not addressed to or returned by a person named in the order, and was not executed and returned by the person to whom it was addressed; and (5) that it was executed before and returned by a commissioner not named in the commission. There is no merit in the fourth and fifth grounds of the motion. In the original order, in force at the time the commission was issued and the depositions were taken, the designation of the commissioners to take the same was as follows: 'the Consul General, or Vice Consul General, or Deputy Consul, or Deputy Vice Consul, of the United States at Paris, France, or to either of the following commissioners of deeds for the State of New York at Paris, France, viz.: Henry Peartree, Henry Cachard, Henry C. Charpiot, Benjamin H. Conner, Mandeville C. Jacobus, William A. Preston and John B. Robinson.' At the times in question said Mason was the Consul General of the United States at Paris, France, and the commission was executed before him as already stated. The contention on behalf
of the respondent is that in so far as the order attempted to designate the Consul General as a commissioner, it was invalid, for the reason that he was not named, and section 887 of the Code of Civil Procedure and the case of Hemenway v. Knudson (73 Hun, 227) are cited as authority for this contention. The failure to give the consul's name did not render the order or the commission void. That was merely an irregularity, which was corrected on a motion to resettle the order made on an appeal to this court from the original order, which modified the original order by striking out 'so much thereof as provides for the execution of the commission before the Consul General, Vice Consul General, Deputy Consul, or Deputy Vice Consul of the United States at Paris, France.' (Bowen v. Havana Electric Railway Co., 142 A.D. 938.) On the motion for resettlement the name of the Consul General, together with his office of 'American Consul General at Paris, France,' was inserted and the other names were stricken from the order. This was after the execution and return of the commission, and that appeared on the motion for resettlement. It is manifest that the purpose of granting the motion to resettle the order was to correct the irregularity with respect to the commission already issued, executed and returned, and not to afford the basis for the issuance of a new commission. The mere fact that the commission was not amended nunc pro tunc in the same manner afforded no ground for suppressing the depositions.
The only basis for the claim that the plaintiff and the witnesses were allowed to have counsel at the hearings, and that defendant was unable to ascertain before whom the commission would be executed, or to be present at the examination of the witnesses, is that after the commission was issued one of the attorneys for the defendant asked one Andrews, an attorney in the office of the plaintiff's attorney, to whom the commission had been sent, to which inquiry Andrews replied that it would be sent immediately to Paris, where the plaintiff's attorney, who had gone there, would receive it, but that he did not know before which commissioner it would be executed, and that the plaintiff's attorney would decide that upon receipt of the commission. It does not appear that defendant's attorneys asked for the foreign address of the attorney for the plaintiff,
or that any communication be sent to him or even informed Andrews that he desired to be notified or to be present. The commission was mailed to the plaintiff's attorney at Paris, France, from his office in New York, and he delivered it to Coudert Brothers at their office in Paris, France, for the purpose of attending to its execution. The record does not show what Coudert Brothers did in the premises, other than that it appears that the commission was executed before Consul General Mason, and he certifies that on its execution 'Mr. Le Fevre appeared in behalf of the plaintiff and that no one appeared in behalf of the defendant; ' but there is no evidence that Le Fevre took any part in the examination of the witnesses, or did anything other than to be present. It is claimed, however, on the part of the respondent, that some of the answers made by the different witnesses are so similar as to indicate that they must have been prepared for the witnesses by some one in behalf of the plaintiff. It appears by the affidavit of the attorney for the plaintiff that on the receipt of the commission by him in Paris, and on ascertaining that some of the commissioners, named in the original order and in the commission, were absent on vacations, or just about to go, he delivered the commission to Coudert Brothers as stated, with instructions to see that it was properly executed 'by one of the American consular officers therein designated and thereafter returned,' and that neither he, nor any one connected with him, attended any of the hearings or saw or communicated with any of the witnesses examined. Part of the criticism on this point is directed to what are claimed to be erroneous recitals of fact in one of the direct interrogatories, and to the answer of Einhorn thereto, and to cross-interrogatory 248, which it is claimed indicate that he was assisted by counsel. In so far as ...