A commission to examine a witness in this case was issued on the part of the defendant, and returned with the answers to inter*459rogatories and filed. Subsequently another commission to examine tlie same witness was issued, also on the part of the defendant, and returned. On the trial the defendant gave in evidence the evidence taken under the second commission. Then the plaintiff gave in evidence, under objection, the evidence taken under the first. There were three objections :
1. Certain irregularities in the return. Advantage should have been taken of these by motion before the trial, as there was abundance of time.
2. That consent to a second commission was a suppression of the first. By no means. Further evidence might be desired. There was no order for suppression.
S. The witness could not be contradicted by previous statements without calling his attention to the matter. But the evidence taken by the first commission was evidence given on the trial. That is, it was direct evidence in the case; not hearsay or secondary. It was just as if the defendant had called and examined a witness and the plaintiff had cross-examined. And then the plaintiff had, recalled the witness and examined in chief. It is a matter of discretion at the trial.
The motion for a new trial should be denied, and judgment ordered on the verdict, with costs.
Present — Learned, P. J., Bockes and Boardman, JJ.Motion for new trial denied and judgment ordered on verdict, with costs.