Majority
p. 218Charles E. Brown, Trustee, Appellant, v. John W. Russell and Frances M. R. Wright, Respondents.
Headnote
Commission to take testimony of a non-resident — his whereabouts must be stated,.A commission to take the testimony of a non-resident witness should not be granted unless the papers read on the application, in addition to alleging that . the proposed witness is a non-resident, state the whereabouts of such witness.
Appeal by the plaintiff, Charles E. Brown, trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Eew York on the 22d day of October, 1900, denying plaintiff’s motion for a commission to take the testimony of Frances M. R. Wright, a non-resident defendant.
Gr. 8. P. Stillman, for the appellant.
John T. Sackett, for the respondents.
The Code of Civil Procedure (§ 887) regulates strictly these applications and permits them to be granted only when it appears that the witness is not “ within the State.” The fact that it appears only that the proposed witness is a non-resident, while her whereabouts is not stated, is not a compliance with that statute. (Matter of Adams, 31 App. Div. 298 .) For the want of that necessary allegation this order must be affirmed, without prejudice, however, to another application upon proper papers. ■
Order affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.