Opinion
April 19, 1907.
William M. Bennett of counsel [ McElheny Bennett, attorneys], for the appellant.
Albert I. Sire, attorney, for the respondent.
The defendant Riter is a non-resident of the State of New York and is now without the State, being in the city of Pittsburg, Pa., where he resides. An issue of fact has been joined and the testimony of the defendant is material. Said defendant applied to the Special Term for an order for the issuance of a commission for the purpose of taking his testimony to be used upon the trial upon written interrogatories.
The moving papers set up the necessary facts as prescribed by sections 887 and 888 of the Code of Civil Procedure, and, in addition thereto, that said Riter was seriously ill and confined to his bed in the city of Pittsburg.
Section 887 provides that "In a case specified in the next section, where it appears by affidavit on the application of either party that the testimony of one or more witnesses not within the State is material to the applicant, a commission may be issued * * *. The applicant or any other party to the action may be thus examined." Section 888 provides that "Such a commission may be issued * * * 5. Where an issue of fact has been joined in an action pending in a court of record and the testimony is material to the applicant in the prosecution or defense thereof." Section 889 provides that "An order * * * must be granted upon satisfactory proof of the facts authorizing it unless the court or judge has reason to believe that the application is not made in good faith or unless an order for an open commission or for taking depositions is made as prescribed in this article."
There is nothing in these papers furnishing a reason to believe that the application is not made in good faith. In the absence of bad faith the provision is mandatory. All that is necessary to appear to justify the granting of the motion for a commission is that the action should be one mentioned under section 888, and that the testimony of one or more witnesses not within the State is material to the applicant. ( Laidlaw v. Stimson, 67 App. Div. 545. )
"A commission may, in a proper case, issue to examine a party as well as a witness upon interrogatories pursuant to the provisions of section 887 of the Code of Civil Procedure." ( Ordway v. Radigan, 114 App. Div. 538.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
PATTERSON, P.J., INGRAHAM, HOUGHTON and LAMBERT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.