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Sullivan v. H. F. Taintor Manufacturing Co.

129 N.Y.S. 598 Court N.Y. App. Div. Decision date 1911-05-26 English

Delivered by HIRSCHBERG, J.

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p. 598
SULLIVAN v. H. F. TAINTOR MFG. CO.
(Supreme Court, Appellate Division, Second Department.
May 26, 1911.)

Headnote

Depositions (§ 36[1] )—Affidavit—Statutory Provisions.
Where there was no specific allegation, in an affidavit in support of a motion for an open commission to take testimony of nonresident witnesses, that the witnesses, or either of them, were not within the state, it was insufficient, under Code Giv. Proc. §§ 887, 894.
[Ed. Note.—For other cases, see Depositions, Cent. Dig. §§ 47-51; Dec. Dig. § 36.[1] ]
Appeal from Special Term, Kings County.
Action" by Katherine Sullivan, as administratrix, etc., against the H. F. Taintor Manufacturing Company. From an order granting an open commission to examine witnesses on behalf of plaintiff, defendant appeals.
Reversed, and motion denied, without prejudice.
Argued before JENKS, P. J„ and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.
James F. Barber, for appellant.
Rutherford B. Meyer (Eugene Eamb Richards, on the brief), for respondent.

The plaintiff sues to recover the sum of $50,-000 for the death of her intestate, alleged to have been caused by the negligence of the defendant in the operation of a factory at Bayonne, in the state of New Jersey. When the action was at issue, the plaintiff moved for an open commission to take the testimony of two witnesses, Walter Garlick and Adam Schaad.

The affidavit accompanying the notice of motion states that the witnesses are necessary and material, that they reside in the state.of New Jersey, and that they were, respectively, the superintendent and assistant superintendent at the defendant’s factory at the time of the accident. There is no specific allegation that at the time of the application for a commission they, or either of them, were not within this state, as required by sections 887 and 894 of the Code of Civil Procedure. The necessity of compliance with this provision of the Code has been often adjudged. See Matter of Adams, 31 App. Div. 298 ,-

p. 599
52 N. Y. Supp. 617 ; Brown v. Russell, 58 App. Div. 218 , 68 N. Y. Supp. 755 ; Fox v. Peacock, 97 App. Div. 500 , 90 N. Y. Supp. 137 .

The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs, but without prejudice to renewal upon additional papers. All concur.

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