McColl v. . Sun Mutual Insurance Co.

*334 Anbuews, J. The order awarding a commission in this case was made at Special Term, upon the application of the plaintiffs, after judgment and after appeal therefrom by the defendant to the General Term, and while the appeal was pending and undetermined. The right of a party to an action to have the evidence of witnesses taken upon commission, and the power of the court to award a commission, depends solely upon the statute. The statute authorizes the court to award a commission for the examination of foreign witnesses whenever an issue, of fact shall have been joined and it shall appear that the witness to be examined is “material in the prosecution or defence” of the action. (2 Rev. Stat., 394, § 11.) In settling the interrogatories to be attached to the commission, each party may insert any question “pertinent to the cause.” (Section 12.) And the examination and depositions taken may be “used on the trial of the cause.” (Section 23.) We are of opinion that under this statute where an issue of fact has béen joined a commission is not authorized to be .issued, unless the issue of fact is depending when the application is made and the right to a trial of the issue appears upon the record. This is not the condition of a case pending on appeal after trial upon the merits and after judgment. The issue of fact is then determined and is merged in the judgment. The reversal of the judgment may require a new trial of the action, but this event is uncertain. There is no present right to a trial and there may never be such right, and the presumption is in favor of the validity of the judgment. It cannot be made to appear, upon the application in such case, that the witness,'whose examination is sought, “is material in the. prosecution or defence of the action.” Its further prosecution, by trial, depends upon the judgment of the appellate court. If "the right to award a commission . exists, pending an- *335 appeal from the judgment, then it may be awarded, ‘although the appeal is pending in this court. Such a power is not within the contemplation of the statute; and the power of the court to award a commission, can only be exercised before trial and judgment. It may be that it would be in furtherance of justice to extend the statute so as to embrace causes like this, but it is to be considered that it would subject the prevailing party in the judgment to the trouble and expense of joining in the commission with a view to a new trial, although judgment had passed in his favor. The order appealed from should be affirmed with costs. All concur, except Grover, J., dissenting. Order affirmed.