Depue v. Depue

Per Curiam:

An oral examination of witnesses upon a commission to be executed without the State is permitted only when very strong' and special reasons therefor are shown to exist. Mo such reasons are shown in the present case. The affidavit upon which the motion was based states-as the conclusion of the plaintiff that owing to the character of the action and the disinclination of the proposed witnesses to testify- it has been impossible to secure stick full statements from; them as will enable and permit counsel to draw such interrogatories for their respective examinations as will bring -out all the facts within their knowledge and which are. material to the alleged acts of adultery, meaning doubtless material to the proof of such acts. The affiant also says that his counsel advises him that the proper. examination of said witnesses can only be made by oral questions. This affidavit differs from others which have heretofore been held to be insufficient to support similar motions, only in that it states no' facts at all from which the court can determine that a commission for examination upon oral questions should issue. It does not say that the proposed witnesses. are adverse to plaintiff, but only that they are averse to testifying, which would probably be true in whatever form their examination is sought. It does not show that any efforts, of what efforts, have been made to obtain information from them, although it does show, in another paragraph, that plaintiff has been able to state to his counsel fully what, he expected to prove by each witness. In short, those portions of the affidavit intended to be persuasive consist only of the affiant’s conclusions with no statement of the facts upon which those conclusions rest. The fact that the action is for divorce is rather a reason against than for the desired commission. ‘

• " The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements and motion denied, with ten dollars costs. . Order tiled.