Fox v. Peacock — 97 A.D. 500

Majority

p. 500

Hugh C. Fox and Others, Appellants, v. G. H. Peacock, Whose Christian Name Is Unknown to the Plaintiffs, and William R. Peacock, Respondents.

Headnote

Commission to exomine witnesses out of the State — insufficiency of an affidavit on information and belief, and made by the attorney instead of by the party—an averment that the moving party is a non-resident of the State, when not a sufficient excuse.-

An order for the issuance of a commission to examine witnesses without the State of New York will be vacated, where the allegations of the moving affidavit concerning the residence of the witnesses and their absence from the State of New York are made upon information and belief and the sources of such information and the grounds of such belief are not stated, and no reason is given why the affidavit of a person familiar with the matter is not produced.

The fact that the moving affidavit was made by the attorney for the moving party, and that no reason is given why such affidavit was not made by the party himself, is also a fatal defect in the affidavit.

The fact that the attorney avers that the moving party is a non-resident of the State of New York is not a sufficient excuse for the failure to produce the affidavit of the moving party, as the attorney’s statement would be true if the moving party was in the State of New York and at the attorney’s side when the latter made the affidavit.

Appeal by the plaintiffs, Hugh C. Fox and others, 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 New York on the 12th day of August, 1904, granting the defendants’ motion for

p. 501

leave to issue a commission to examine certain witnesses without the State of New York.

Henry Wetherhorn, for the appellants.

Hodóbphe Glaughton, for the respondents.

The papers upon which this order was granted seem to be fatally defective in almost every particular.

The provision of the Code of Civil Procedure (§ 887 et seq.) is that where issue has been joined in an action pending in a court of record a commission may issue to take the testimony of material witnesses not within the State; and the facts authorizing the issuance of a commission must be made to appear to the court by affidavit.

In the case at bar the affidavit upon which the order for a commission was granted was made solely upon information and belief as to the residence of the witnesses, and that they were not within the State. No sources of information nor grounds for belief are furnished, nor was any reason given for not obtaining the affidavit of some person who knew something about the matter.

It has too long been the rule to need the citation of authority, that such averments in an affidavit have not probative force. The court has a right to know whether the affiant had any reason to believe that which he alleges in his affidavit. It is not sufficient that the affiant thinks he has grounds to believe, for when he discloses the sources of his belief the court may be of the opinion that he has been too credulous, and should not have believed that the facts necessary to the granting of the order existed.

There is another fatal defect in the papers upon which this order was granted. The moving affidavit was made by the attorney, and no reason is given why it was not made by the party. The party certainly knows more as to the facts necessary to be established to entitle him to a commission than his attorney. It may be said that the attorney swears that the defendants are non-residents of the State. This is true, but he does not state that the parties are not then within the State. His affidavit would be perfectly true if his clients were standing at his elbow at the time he was making that affidavit.

p. 502

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew upon proper papers upon payment of these costs.

Patterson, O’Brien, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew upon proper papers upon payment of these costs.