Majority
p. 886Helen R. Zeggio and Mary R. Albee, Respondents, v. Duryea Remsen Robinson and Edward E. Perkins, Individually and as Executors and Trustees under the Last Will and Testament of Phebe H. Robinson, Deceased, Appellants, Impleaded with Others.
Headnote
Deposition — examination of non-resident witness—stay.Appeal from. an order of the Supreme Court, made at Special Term and entered on the 4th day of September, 1912, denying appellants’ motion to open default.
Except in a ease specified in subdivision 3 of section 888 of the Code of Civil Procedure, an application for a commission to take
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the deposition of a witness without the State “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.’ (Code Civ. Proc. § 889; Oakes v. Riter, 118 App. Div. 773 .) Laches furnishes sufficient reason to deny a stay of the trial of the action pending a return of the commission but is not of itself sufficient to justify a denial of the motion fora commission. The order of September 4, 1913, is reversed, With ten dollars costs and disbursements, and the motion granted. Present— Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ. Order of September 4, 1913, reversed, with ten dollars costs and disbursements, and motion granted. Appeal from order of August 16, 1913, dismissed. Motion for stay granted, without costs. Order to be settled on notice.