In re Garvey

The papers which were presented to the justice were sufficient to confer jurisdiction upon that officer to issue the subpoena in question. The witness who was thus required to appear for examination under the foreign commission had no standing to question the sufficiency of the proof thus presented. So far as he is concerned, the statute was complied with, and the justice called upon to act, when the commission was presented to that officer, with an affidavit which satisfied him that the appellant’s testimony was material to his adversary. The “proof by affidavit” of such materiality, called for by the statute, is not that strict legal evidence required in granting attachments, orders of arrest, and similar remedies of a severe character. Olcott v. Evans (Sup.) 4 N. Y. Supp. 703 . It is rather the formal proof usually called for in mere matters of practice. To illustrate: In applying for a commission in this state, it must be made to appear by affidavit that the testimony of the witness sought to be examined is material to the applicant. Code, § 887. If that affidavit is made by the party, he is only required to state that the testimony. of the witness is material, as he is advised by his counsel and verily believes. The affidavit may even be made by the attorney of the applicant, or by his agent, or by any other person cognizant of the facts. Beall v. Dey, 7 Wend. 513 ; Murray v. Kirkpatrick, 1 Cow. 210 ; Eaton v. North, 7 Barb. 631 ; Johnson v. Lynch, 15 How. Prac. 199. It has always been the rule that such a bare statement of materiality is prima facie sufficient, and that it is not necessary to specify the facts and circumstances which show that the examination of the witness is material and necessary. It certainly is not for the witness to criticise the proof of materiality as defective or insufficient. That should be left to the parties to the action. Even in very much more serious and important matters, as, for instance, in orders of publication, it has been held that a bare statement that the defendants, who were nonresidents, “cannot, after due diligence, be found within this state,” was sufficient “to call upon the judicial mind to determine whether due diligence had been employed to find the defendants,” and consequently that there was jurisdiction to grant the order. Kennedy v. Insurance Co., 101 N. Y. 487 , 5 N. E. 774 . The same rule has been applied where the jurisdictional facts were stated upon information and belief. Seiler v. Wilson, 43 Hun, 629 ; Belmont v. Cornen, 82 N. Y. 256 . It is quite clear, therefore, that the general allegation of materiality made in the affidavit under consideration was sufficient to warrant the issuing of the subpoena, and certainly the witness has thereby been deprived of no substantial right.

The other points may be briefly disposed of. The original affidavit was properly made by an assistant of the attorneys employed by the commissioner to procure the subpoena. It is hypercritical to accuse the commissioner of prejudice because he acted for the party suing out the commission so far as to procure the necessary subpoena. If the law had authorized the commissioner to issue the subpoena, he could hardly be charged with partisanship for acting upon that authority.

Lastly, the attorney’s affidavit, though upon information and belief, was sufficient to confer jurisdiction. But, even if his original statements were insufficient, the applicant had a right to answer the affidavits upon which the witness moved to vacate the subpoena, and they did so by further proof of materiality. It has been held that this was sufficient to sustain the subpoena. Olcott v. Evans (Sup.) 4 N. Y. Supp. 703 .

The order denying the motion to vacate was therefore right, and should be affirmed, with $10 costs and disbursements. All concur.