New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-01-15
KEENAN, GAINS HIS POINT.
TESTIMONY TO BE TAKEN IN CANADA
Hrs APPLICATION TO HAVE A COMMISSION AP-
POINTED GRANTED BY JUDGE ANDREWS.

HIS APPLICATION TO HAVE COMMISSION Az
POINTED GRANTED BY JUDGE ANDREWS
The application made ON behalf Of John Keenan,,
I'm his suit against O'BrIen g. Clark, for snare oi
the profits of their New Aqueduct contracts 70 nave
commission appointed TO take the planan 'es'iinons
In Canada was granted yesterday by Justice ANDREWS
Of the supreme Cod In an opinion wnlon ~ .s
handed down the Judge says that section "a OF .ne
Code provides that 10 case speclped IN secuon COO
where Il appears by AFFIDAVIT on the application Oh
either party that the testimony OF one or more VII
nesses not within the state Is material to the applicant
a commission NAV issue. Undcr the same seeuon
fsss, the application for commission must be granted
upon satisfactory proof OF the facts authorizing III
unless the court Judge has reason 10 DeheVo 'a'
the application is not made in good faith or unless an
order for an open commission, or fer taxing aepoA
tons is made as prescribed In the Code.
The Judge goes on to say: at appears by 'no
moving papers that an issue Of fact has been Joined
IN this action, that the plaintiff IS not within mo
state and that his testimony is material 10 mmsen
I'm the prosecution thereof Under these circumstances
the Court has no discretion in regard to granting or re-
fusing the application unless It has reason 10 peno'o
that such application is not made in good iatn.
10 audge saws II Is not necessary TO pass upon inc
opestion whether keenan, stays away TO avoid arrest
and prosecution under the indictment against him. as
under the Code be has no discretion TO deny the ap-
plicaton ( On this point he says Every person
IL presumed by the law TO be innocent until no has
been convicted, and II does not seem to me that IL
would be proper to deprive any person OF the right
70 prosecute civil action in this court in the ordinary
and usual manner merely because an indictment had
been found against him in the Court of General ses
SONS and Of his failure return from foreign country
TO which he had gone long before the Indictment vas
found. The motion for an order that commission
issue In this action will be granted, but II the COM
missioner named In the notice of motion is objected 10
BY the defendants will consider the prcpriety Oh
naming some other person."
The motion TO vacate the order for the examination
OF Heman Clark as witness before tilai IN 'ns su
modified The Judge, in long opinion. states INC
claim OF the plaintiff that the defendants have pos
session OF the books and have not allowed MN 10
SEQ them; that they have applied to their own use
that they have misappropriated large sums oeionRng
to the partnership Referring to this he says: as
the planff seeks to have the partnership olsSovea
or the font business terminated because as he CLAIMS
the defendants have done the several things above
on,imerated 1t necessarily follows that IL Wall DC
part Of his TO or TO endeavor 10 prove mat
the defendants have actually done these various things
before the defendants called upon TO put IN any
evidence Moreover, II is evident that unless the
plaintiff can prove this part OF his case by the
defendants ard their books. 1t will be dlhcuit "
prove II at ALL -. - %
prove the partnership the agreement. but also as
The defendants have become guilty OF such conoucs
rs entities him to have the partnership dissolved pc
ever EVER '"1 The Judge adds: al think the order
should be modified so to provide that the examln&
fion shall not extend 10 any inquiry as TO inc acs
or Omissions OF the plaintiff, which the Defendants
RELY on to establish that the agreement Of 1850 never
became operative ceased to exist In mat respees
the order is modified and tho motion Is Denied