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First Department, November, 1911. of the respondent is that in so far as the order attempted to designate the Consul General as a commissioner, it was invalid, for the reason that he was not named, and section 887 of the Code of Civil Procedure and the case of Hemenway v. Knudson (73 Hun, 227) are cited as authority for this contention. The failure to give the consul's name did not render the order or the commission void. That was merely an irregularity, which was corrected on a motion to resettle the order made on an appeal to this court from the original order, which modified the original order by striking out “so much thereof as provides for the execution of the commission before the Consul General, Vice Consul General, Deputy Consul, or Deputy Vice Consul of the United States at Paris, France.” (Bowen v. Havana Electric Railway Co., 142 App. Div. 938.) On the motion for resettlement the name of the Consul General, together with his office of “American Consul General at Paris, France,” was inserted and the other names were stricken from the order. This was after the execution and return of the commission, and that appeared on the motion for resettlement. It is manifest that the purpose of granting the motion to resettle the order was to correct the irregularity with respect to the commission already issued, executed and returned, and not to afford the basis for the issuance of a new commission. The mere fact that the commission was not amended nunc pro tunc in the same manner afforded no ground for suppressing the depositions.
The only basis for the claim that the plaintiff and the witnesses were allowed to have counsel at the hearings, and that defendant was unable to ascertain before whom the commissicn would be executed, or to be present at the examination of the witnesses, is that after the commission was issued one of the attorneys for the defendant asked one Andrews, an attorney in the office of the plaintiff's attorney, to whom the commission had been sent, to which inquiry Andrews replied that it would be sent immediately to Paris, where the plaintiff's attorney, who had gone there, would receive it, but that he did not know before which commissioner it would be executed, and that the plaintiff's attorney would decide that upon receipt of the commission. It does not appear that defendant's attorneys asked for the foreign address of the attorney for the plain
First Department, November, 1911.
[Vol. 146. tiff, or that any communication be sent to him or even informed Andrews that he desired to be notified or to be present. The commission was mailed to the plaintiff's attorney at Paris, France, from his office in New York, and he delivered it to Coudert Brothers at their office in Paris, France, for the purpose of attending to its execution. The record does not show what Coudert Brothers did in the premises, other than that it appears that the commission was executed before Consul General Mason, and he certifies that on its execution “Mr. Le Fevre appeared in behalf of the plaintiff and that no one appeared in behalf of the defendant;” but there is no evidence that Le Fevre took any part in the examination of the witnesses, or did anything other than to be present. It is claimed, however, on the part of the respondent, that some of the answers made by the different witnesses are so similar as to indicate that they must have been prepared for the witnesses by some one in behalf of the plaintiff. It appears by the affidavit of the attorney for the plaintiff that on the receipt of the commission by him in Paris, and on ascertaining that some of the commissioners, named in the original order and in the commission, were absent on vacations, or just about to go, he delivered the commission to Coudert Brothers as stated, with instructions to see that it was properly executed “by one of the American consular officers therein designated and thereafter returned," and that neither he, nor any one connected with him, attended any of the hearings or saw or communicated with any of the witnesses examined. Part of the criticism on this point is directed to what are claimed to be erroneous recitals of fact in one of the direct interrogatories, and to the answer of Einhorn thereto, and to cross-interrogatory 248, which it is claimed indicate that he was assisted by counsel. In so far as the objection is that the direct interrogatory contains an improper recital, that is a matter which should have been remedied on the settlement of the interrogatories, and since it was acquiesced in or if objected to it must be presumed that it was allowed by the court, it affords no ground for criticism with respect to the execution of the commission. The answers of Einhorn, to which attention is drawn, tend to show interest or bias, but it cannot be inferred thereApp. Div.] First Department, November, 1911. from that he was assisted by counsel, and in the absence of such evidence it only goes to his credibility, which is a matter for consideration on the trial of the issues only. It is also urged in support of this objection that the Banque Internationale de Paris, one of the plaintiff's assignors, was interested in the plaintiff's claim, and that the witnesses were interested in or connected with it. That, however, was no objection to their being examined as witnesses, and does not tend to show that the commission was not fairly executed. Manifestly there was no basis for suppressing the depositions on the third ground.
There is no statutory authority for suppressing depositions on the other grounds upon which the motion was made (Code Civ. Proc. $ 910), but doubtless upon the same principle that the testimony of a witness upon a trial, who refuses to be fully cross-examined, may be stricken out on the ground that the party who calls him cannot have the benefit of testimony with respect to which the witness refuses to be fully examined, the court possesses inherent power to suppress a deposition where the witness refuses to give material testimony called for by proper cross-interrogatories, and the proper practice is to move at Special Term in advance of the trial as was done here. (Calhoun v. Commonwealth Trust Co., 12+ App. Div. 633.)
A proper understanding of the materiality of the evidence, which it is claimed the witness failed to give, requires that the nature of the issues be stated. The action is brought on six assigned causes of action against the defendant, based on a contract in writing made on the 11th day of September, 1899, between Hanson Brothers, party of the first part; Percival Farquhar, F. S. Pearson, G. B. M. Harvey and B. F. Pearson, parties of the second part; Ernest Ruffer, party of the third part; the Banque Internationale de Paris, party of the fourth part; the defendant, party of the fifth part, and the United States Mortgage and Trust Company, party of the sixth part. This agreement was supplementary to and in part a modification of an agreement in writing and, according to the answer under seal, between the same parties, except the United States Mortgage and Trust Company, made on the eighteenth day of
First Department, November, 1911.
[Vol. 146. April of the same year. The original agreement recited that the parties of the first, second, third and fourth parts were the owners in different proportions of the concessions, rights, shares, properties and belongings of La Compania Ferro Carril Urbano y Omnibus de la Habana, meaning The City Railroad and Omnibus Company of Havana, a corporation organized and formerly existing in Havana, Cuba; and it provided for a sale thereof to the defendant, in consideration of the transfer to them of stock and bonds of the defendant in the amounts and proportions therein provided. The vendors of the concessions, rights, shares, properties and belongings of said formerly existing railroad and omnibus company agreed in the 3d clause of the contract that on the delivery of the stock and bonds to them they would pay to the trustee of a mortgage - evidently executed to secure the payment of the bonds, although this fact is not recited — “an amount equal to five per cent on the face value of the bonds delivered to them,” which amount it was provided should be applied to the payment of the first interest that shall accrue for the first year on the bonds; and they further agreed, in the 4th clause of the contract, to purchase from the defendant additional bonds in the amount therein specified, at ninety-five per cent of the face value thereof, and to pay the trustee therefor; and it was provided that the trustee should retain five per cent thereof for the payment of the first year's interest on the bonds. The second agreement recites that the concessions, rights, shares, properties and belongings covered by the first agreement had been conveyed to the defendant by the parties of the first, second, third and fourth parts, and that the defendant had issued its stock and was about to deliver the same in accordance with the agreement; that it had executed a mortgage to the United States Mortgage and Trust Company, and was about to issue its bonds and to deliver the same to the parties of the first, second, third and fourth parts; that the making of the mortgage securing the bonds and the issuance of the bonds had been for various unavoidable reasons unexpectedly delayed, and that the bonds were dated February 1, 1899, and bore interest from that date, and the first coupons became due on August first prior to the execution of the second agreement, and that for those and other reasons recited, which
First Department, November, 1911.
it is not necessary to set forth here, it was mutually agreed, among other things, that before the delivery of the bonds the coupons which had become due should be cut off and canceled, and that the moneys which the vendors were to pay to the trustee to be applied to the payment of interest on the bonds should be applied to the payment of such interest falling due on the 1st of February and August, 1900. The 3d clause of the second agreement is the one upon which the assigned causes of action are based. It provides that the net earnings of the defendant, after providing for fixed charges “as determined by the Board of Directors of the said Company shall, to the extent that they are earned, but not exceeding a total amount of one hundred thousand ($100,000) dollars, be paid by it to the parties of the first, second, third and fourth parts respectively, in the proportion that under the Third and Fourth Articles of said agreement, said parties make payment respectively to the Trustee of the said mortgage of amounts which are applied to the payment of the interest falling due on August first, nineteen hundred, on the bonds duly issued under said mortgage.
It is alleged that the sale of the said concessions, rights, shares, properties and belongings was consummated pursuant to the original agreement, as modified by the second agreement; that the vendors paid the amounts to the trustee in the proportions, and as by the agreement they were required; that the net earnings of the defendant over and above the fixed charges as determined by the board of directors not only were sufficient to reimburse them, as contemplated by the agreement, but that the board of directors “duly determined and resolved that the said net earnings of the defendant, in excess of its said fixed charges, should be applied to the repayment of the aforesaid amounts,” and credited their respective accounts 'with the amount thereof. The plaintiff, by virtue of these assignments, succeeded to the rights of the parties of the first, second, third and fourth parts, with respect to this reimbursement, excepting F. S. Pearson, whose share of the $100,000 amounts to the sum of $6,250. The Banque Internationale de Paris was in liquidation at the time of the assignment of its claim to the plaintiff, and the formal assignment of the claim was made by two of its liquidators. This assignment was put