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Lowther v. Sullivan

107 N.Y.S. 198 Court N.Y. App. Term Decision date 1907-11-29 English

Delivered by LEVENTRITT, J.

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p. 198
LOWTHER v. SULLIVAN.
(Supreme Court, Appellate Term.
November 29, 1907.)

Headnote

Depositions—Ordeb fob Commission—Sufficiency of Affidavit.
An affidavit for a commission, made by plaintiff’s attorney, which does not give any reason why it was not made by plaintiff, and states merely the conclusion of the affiant as to the materiality of the testimony sought, unsupported by any specification of facts, is insufficient, under* Code Civ. Proe. § 887, providing for a commission where it appears by affidavit, on the application of either party, that the witness’ testimony is material to the applicant.
Appeal from City Court of New York, Special Term.
Action by Clarence E. Lowther against James E. Sullivan. From an order to issue a commission on interrogatories to examine a witness, defendant appeals. Reversed.
Argued before GILDERSLEEVE, P. J., and EEVENTRITT and ERLANGER, JJ.
p. 199
William Klein, for appellant.
Warren, Warren & O’Beirne, for respondent.

The plaintiff procured an order to issue a commission on interrogatories to examine one John Stuart at London, England. The affidavit upon which the order is based was made by one of the attorneys for the plaintiff, and the facts therein stated and upon which the court relied in order to predicate its conclusion are as follows :

“That deponent is fully conversant with all the facts In relation to this case, and has full knowledge in reference to the materiality' and necessity of all of the witnesses in hehalf of the plaintiff herein, and that the said plaintiff has fully and fairly stated the case in said action to this deponent, his counsel, who resides at 108 Central Park West, and has fully and fairly disclosed to him facts which said plaintiff expects to prove by the witness John Stuart, who resides at Savoy Mansions, in the city of London, in the kingdom of Great Britain; that the testimony of said John Stuart is necessary and material to the plaintiff in the prosecution of this action; that the said John Stuart is not within the state of New York, but the said John Stuart is at the Savoy Mansions, in the city of London, England.”

We think that under the authorities this affidavit was totally insufficient to justify the order. In the first place, it was made by the plaintiff’s attorney, and no reason is given why it was not made by the plaintiff. Furthermore, no facts are presented from .which it may be said, under section 887 of the Code, that the testimony sought is material. There is nothing but the conclusion of the affiant, unsupported by any. specification of fact. These omissions have been declared to be fatal to an application of this nature, and we must be governed by the principles of practice which have been enunciated (Fox v. Peacock, 97 App. Div. 500 , 90 N. Y. Supp. 137 ), and which call for a reversal of the order appealed from.

Order reversed, with $10 costs, and motion denied. All concur.

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