This is an appeal by defendants from an order made on motion of plaintiff that two commissions issue to examine two witnesses on interrogatories to be annexed to said commissions, and denying defendants’ request to have a provision inserted in said order that they be allowed an oral cross-examination of said witnesses. It is evident from an examination of the affidavits and papers in the case that the witnesses so proposed to be examined by commission are very important ones. They are doubtless plaintiff’s principal witnesses to establish his cause of action. It is apparent from the nature of the case that it would be difficult, if not impossible, for the defendants to so anticipate what these witnesses would testify to as to properly frame written cross interrogatories. I think defendants, if they desire, should have the right to orally cross-examine these witnesses. The court-, under sections 893, 894,1 Civil Code, have the power to direct an oral commission, and have often exercised the power in_ similar cases. Smith v. Talmadge, 3 N. Y. Law Bul. 97; Parker v. Lythgoe, 13 N. Y. Supp. 949; Wainwright v. Low, 49 Hun, 283, 1 N. Y. Supp. 786.
On appeal from the order it is our duty to consider and pass upon the case on its merits. Jemison v. Bank, 85 N. Y. 546. The order should be modified as follows: It should provide that the commission issue in the ordinary form, with leave to the defendants to cross-examine the witnesses orally; they, however, to pay the expenses of the commission attendant on said cross-examination; plaintiff to have the right to subject the witnesses to an oral re-examination, if desired; Be to bear the expenses thereof. The plaintiff may also, if he so elects, have.an oral direct examination of said witnesses, instead of an examination upon interrogatories. I think the order should be modified as above, without costs to either party." All concur.
Thcse sections provide that the parties may stipulate or the court may direct that a commission issue without written interrogatories, and that the deposition be taken oh oral questions, or partly on oral questions and partly on written interrogatories.