Skinner against Dayton and others.
March 28th.
An irregularity of practice, or defective notice, will be cured by a neglect to complain of it in due season.
As where a party, who had not received due notice of the examination of witnesses before commissioners, suffered ten months, or three terms to elapse, before making application to the Court, he was held to have waived, by this delay, any right to cross-examine the witnesses, or to object a want of notice.
MOTION on the part of theplaintifi, to suppress certain depositions taken on the part of the defendants, for irregularity, on an affidavit of the plaintiff’s solicitor, stating, that the interrogatories were left at his office, on the 11th day of May, 1820, with notice, that the witnesses would be examined before commissioners, on the 13th of May. That the solicitor was absent from home, when the notice was served, and did not return until after the day. That the solicitor did not, to iiis recollection, receive notice from the commissioners of the day and place of examining witnesses, under the defendant’s commission. That the witnesses were examined on the direct interrogatories of the defendants on the 13th, ífíth, and 16th of May, and the commission returned on the 18th of May, 1820.
The affidavit of the defendants’ solicitor was read, in opposition to the motion, stating that the plaintiff’s solicitor had consented to the commissioners named in the defendants’ commission. That the deponent, hearing that no cross interrogatories had been filed, asked the plaintiff’s solicitor, a short time after the execution of the commission, if he had received notice of executing the commission, and was answered in the affirmative. That the deponent then offered to consent, in writing, that the plaintiff’s solicitor might file cross interrogatories, and examine the witnesses; but the *192plaintiff’s solicitor replied, that he did not wish to file cross interrogatories, and made no complaint of any irregularity ; and the deponent heard nothing more on the subject until the cause was set down for hearing, and notice of the present motion for this term.
Henry, for the motion.
Z. R. Shipherd, contra.
The Chancellor.
The irregularity complained of has been waived by the acquiescence and delay of the plaintiff’s solicitor. This Court observed, in the case of the Executors of Brasher v. Van Courtlandt, (2 Johns. Ch. Rep. 249.) that irregularities in practice, and defective notices, might be cured by neglect to complain in due season ; and that there was good sense in the practice of the Courts of law on this point. Here has been a delay of ten months ; and three terms have been suffered to elapse, after notice of the examination, and after a very reasonable offer to cure the defect had been made and declined. There is no reason or justice in the present application. The opportunity to cross-examine has been expressly waived.
Motion denied.