NEW YORK STATE BANK v. WESTERN BANK.
Oct. 15, 1836.
Buie to show cause why the return to a commission should not he fded.
Commission issued on interrogatories and cross interrogatories died, to take depositions of witnesses in another state, executed and transmitted to the counsel of the party at whose instance the commission issued. The court will make a rule on the counsel having the possession of the document to place it on file, the same being subject to exceptions as to the form and manner of taking, the competency of the testimony, Arc.
IN this case a rule for a commission had been entered by defendants to take the testimony of certain witnesses on their behalf, on interrogatories filed, in the state of New York. The plaintiffs filed cross interrogatories, and the commission was issued in the usual form. The commissioners executed the commission, and directed it to the defendants’ counsel, who received it, but who did not file it of record. September 17,1836, on the petition *17of plaintiff’s counsel, the court granted a rule on the defendant’s counsel to show cause why they should not file the commission and return made thereto by the commissioners. On the hearing of the rule,
F. W. Hubbell, for the plaintiff.
Lex and Meredith, for the defendants.
Per Curiam.—
The return of the execution of a commission is a document belonging to the court from which the commission issued, and not to the party at whose instance it issued. Notwithstanding the error of the commissioners in directing the return to the party, the court will order it to be placed on record, subject, however, for future action, if any may be required, under the 90th rule of the court, as to any irregularities of the commissioners, if any there be, on exceptions duly filed. Therefore, the following order is made:
“October 15th, 1836. Rule absolute, the commission to be placed in the possession of the prothonotary, without prejudice to either party, and with the same effect as if it had been originally directed by the commissioners to the prothonotary, and regularly received by him, and opened by one of the judges of the court.”
Rule absolute.