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In re Garvey

54 N.Y.S. 115 Court N.Y. Sup. Ct. English

Delivered by GIEGERICH, J.

Contents

Majority

p. 115
(25 Misc. Rep. 353.)
In re GARVEY.[1]
(Supreme Court, Special Term, New York County.
July, 1898.)

Headnote

1. Depositions—Requirement op Affidavit for Commission.
The facts and circumstances showing the materiality of the testimony of a witness need not he set forth under the requirement of Code Civ. Proc. § 915, that a subpoena shall be issued when a commission authorizing the testimony of a witness to be taken within the state for use without it shall be presented with proof, by affidavit, that the testimony of the witness is material to the party desiring it.
2. Same—Commission—Authenticity.
.Under Code Civ. Proc. § 915, providing that a subpoena shall be issued when commission for taking the testimony of a witness in New York for use elsewhere, with a certain affidavit, shall be presented, the judge issuing the subpoena is not required to satisfy himself of the authenticity of the commission.
A commission was issued in an action pending in Illinois to take the deposition of James Duane Livingston in New York. On presentation of the same, with the affidavits of Isaac Edward Garvey and others, a subpoena was issued and served thereunder. On motion to vacate the subpoena.
Denied.
Hawkins, Delafield & Sturgis, for plaintiff.
Sheehan & Collins, for defendant.

The subpoena served upon James Duane Livingston is sought to be vacated upon three grounds. The first is that the application for a subpoena was not made on behalf of any of the parties to the suit in which the commission to take testimony within the state was issued. It appears, however, from the uncontradicted averment contained in the affidavit of Isaac Edward Garvey, that such application was made in behalf of the defendants therein. It is next urged that there was no proof by affidavit that the testimony of the witness is material to the party seeking to take it, as required by section 915 of the Code of Civil Procedure. The affidavit of Mr. Matthew T. Johnston alleges,. “upon information and belief, that the testimony of the witnesses above named is material to the defendant in the said action of James Duane Livingston v. The People’s Gaslight & Coke Company, and necessary for the proper defense of said action. The sources of deponent’s information, and the grounds of his belief

p. 116
as to the materiality of the testimony of said witnesses, are correspondence had between Seward, Guthrie, Steele, Esqs., the said Commissioner Isaac Edward Garvey, Esq., and Winston & Meagher, Esqs.,. of Chicago, Illinois, attorneys for the said defendant, the People’s-Gaslight & Coke Company.” It is claimed that this is insufficient, because the facts and circumstances showing the materiality of the testimony of the witness sought to be examined have not been shown;, and a number of cases arising under section 872 of the Code of Civil-Procedure have been cited in support of the coutention. Such adjudications, however, in my opinion, have no application, for the reason that rule 82 of the general rules of practice, requiring the facts and circumstances to be specified, applies only to an examination under sections 870-872 of the Code. Moreover, it was held by Brady, J., in Wittenbrock v. Mabins, 57 Hun, 146 , 147, 10 N. Y. Supp. 733 , that “the issuance of the commission determines the materiality of the witness to be subpoenaed.” It is further claimed (3) that the commission was insufficient, on the ground that it was not authenticated as required by section 905 of the Revised Statutes of the United States. Section 915 of the Code merely requires the production of the commission, notice, or other paper authorizing the testimony to be taken. The commission in this matter is authenticated by the seal of the court out of which it was issued, and the signature of the clerk thereof. Besides, the genuineness of the same is not questioned by Mr. Livingston. As was said by Brady, J., in Wittenbrock v. Mabins, 57 Hun, 147 , 10 N. Y. Supp. 733 : “Section 915 provides for the examination of a witness, when a commission has been issued for that purpose, in an action pending elsewhere, in which case the presentation of the commission required the issuance of a subpoena. The justice of this court applied to has, then, nothing else whatever to do with the matter. If satisfied there is a commission, that is enough.”

It follows from these views that the motion should be denied, and that the stay heretofore granted herein be vacated. Order to be settled on one day’s notice.