The plaintiff moves for a commission to examine witnesses in Ohio. The defendant does not object, but claims the privilege of attending the examination and orally cross-examining said witnesses, and presents and reads an affidavit of one of the defendants, showing cause for such oral examination, and which I deem sufficient for the purpose, and presenting a strong case for the exercise of the ■ discretion of the court in departing from the usual practice of examination and cross-examination of witnesses under a commission.
The opinion of Hoffman, J., in Deshon v. Packwood, does not affect the exercise of such discretion in this case.
I think the decision in the case of Clayton v. Yarrington (16 Abb. Pr., 273), and the opinion of Davies, J., subsequently approved by the supreme court in this district at general term, to be eminently just and sound.
The motion is granted, upon condition that defendants have notice of the time and place of examination, and liberty to orally cross-examine the witnesses ; the plaintiff to have the liberty to continue the examination orally if he shall so elect.