Sommer v. Guardian Life Insurance Co. of America

In an action on an insurance policy, in which the defendant set up as a defense that the insured in applying for reinstatement of a lapsed policy made false representations as to Ms state of health and consultation and treatment by a physician, the defendant moved for a commission to take the testimony of a physician in CMcago, 111., upon written interrogatories on the matters in defense. The plaintiff opposed the motion and requested that the testimony of the physician be taken by an open commission; and that she be paid the expenses for her counsel traveling to CMcago. The defendant’s motion was domed; and the order provided for an open commission and the payment by defendant of $100 for the expenses of plaintiff. Order reversed on the law and the facts, without costs, and the defendant’s motion granted. The matter is remitted to the Special Term to settle the interrogatories and fix the place and date of the examination of the witness. The testimony to be given by the witness is limited as to its competency; and the facts presented do not warrant the issuance of an open commission. _ Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ., concur.