The plaintiff appeals from an order suppressing the depositions of ■two witnesses who were examined in England upon ah open commission.. One of the witnesses has since been re-examined, and the appeal, therefore, relates only to the deposition of one William Trotter. The plaintiff sues for $825,000 damages. He alleges that the defendant" had been given possession" and control and the exclusive right to sell $4,250,000 of the bonds of the United States Shipbuilding Company, and' also the right, as an inducemént-to said'sale, to give shares of the preferred and common stock of said company, the said bonds being part of an issue of $16,000,000; that defendant entered into a contract with plaintiff whereby it agreed to put firmly in his" hands'for sale abroad $3,000,'000' of-said b onds, and further agreed with him that the remainder of said bonds were and would remain pooled, and wonld not be sold or negotiated for less than ninety-five per cent of "their par value; that plaintiff should receive for his services the difference between ninety and ninety-five per. cent of said par value of the bonds sold by' him, and in *635addition thereto preferred and common stock of the shipbuilding company to the extent, as to each class of stock, of twenty-five per cent of the par valne of the bonds sold, and that said stock was and would remain pooled and would not be sold at less than $65 per share for preferred stock and $25 per share for common stock; that plaintiff went abroad and was engaged in selling and endeavoring to sell said bonds, and would have sold at ninety-five per cent .the $3,000,000 of bonds intrusted to him for sale had it not .been for certain acts done by defendant in violation of its contract. This breach consisted, as alleged, in the sale by defendant to certain persons in Hew York of all of the shipbuilding bonds in its possession, including those intrusted to plaintiff for sale, at a price far below ninety-five per cent. To establish his case the’ plaintiff seeks to show, by certain witnesses resident in England, that he had made such progress with his attempts to sell the bonds thatlie would have succeeded in disposing of all of the $3,000,000 worth, if. the sale had not been prevented by the acts of which he complains. The William Trotter, whose deposition it is sought to suppress, and who is apparently a very important stockbroker in London, testified as tó his interviews with plaintiff and as to certain negotiations which he entered upon with a view to placing the bonds. The witness'testified that, from the statements made to him by plaintiff, he was favorably impressed with the proposition to buy the bonds, and placed the matter before some of his clients, trust companies and others, some of whom expressed an inclination to participate in the purchase/ if upon further investigation the witness decided to go in himself. He testified very positively, however, that no decision was arrived at by himself or any of those whom he consulted either as to' whether any bonds should be taken, or if any, how many, except that one trust company, the name of which he could not recollect, agreed to take $100,000 of the bonds if the sale went through. The witness appears to have answered the questions put to him fully and with great frankness until he was asked upon cross-examination to give the names of the persons and companies to whom he presented the proposition to purchase the bonds. This he declined to do, not by reason of any objection made by plaintiff, but for the purely personal reason that he did not care to give the names of what he called his clientele, explaining that the *636matter had come to'nothing, not'even to a definite offer on the part of any one to take bonds. He testified that he dropped the matter when he learned that bonds were being offered from other sources' at. a less price than they were, offered by plaintiff. Although the refusal of a witness examined on commission to answer proper and material questions put to him upon cross-examination is not one of the grounds stated in section 910 of the Code of Civil Procedure, it is well settled that a deposition may be suppressed for that reason (Goldmark v. Metropolitan Opera House Co., 22 N. Y. Supp. 136), and it is proper to make a motion,to that effect in advance of the trial as the defendant has now done. (Sturm v. Atlantic Mut. Ins. Co., 63 N. Y. 77, 87; Wright v. Cabot, 89 id. 570.) In cases like the present, however, where the refusal to answer questions has been due to no act or objection of the party who calls the witness, the whole deposition should not be suppressed unless it can be clearly seen that the questions to which answers were refused were material. The plaintiff was attempting to show that he would have .succeeded in selling the bonds but for defendant’s breach of its agreement. The most that he did show by the witness Trotter was that the witness and some other persons were disposed to look with favor upon the proposition, but that no decision to purchase had been arrived at, and that none would have been arrived at in any event,, without further examination and inquiry as to thé organization of the shipbuilding company, its assets and prospects of success. If Trotter had testified that any of these clients had agreed to take bonds, or' had stated that they would take any particular amount, if the (Organization and assets of the company proved satisfactory, it would have been very material to ascertain who they were in order to test the accuracy of Trotter’s evidence. But where there had been nothing but talk, resulting in no definite proposition, it was of slight importance with whom the talk was had, and the questions which sought to elicit their names were not sufficiently material to justify the suppression of the whole deposition because they were unanswered. If under the sáme circumstances the witness had been actually in court and had "refused to answer the questions, while lie might have been punished for contumacy, it is doubtful whether the court would have felt justified in punishing the party who called him, by striking out his whole testimony. Hor does it appear that the defendant *637could not have compelled the witness to answer the questions by proper application to an English court. Our own Code provides for such a case, and we have no reason to suppose that the courts in England do not exercise the same authority.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to suppress the deposition of the witness Trotter be denied, with ten dollars costs.
Patterson, P. J., concurred; McLaughlin and Clarke, JJ., dissented.