Brown v. Russell — 68 N.Y.S. 755

Majority

p. 755

BROWN v. RUSSELL et al.

(Supreme Court, Appellate Division, First Department.

February 25, 1901.)

Headnote

Commission to Examine Witness—Application—Absence from State.

Under Code Civ. Proe. § 887, providing that, where it appears by affidavit that the testimony of a witness not within the state is material to the applicant, a commission may be issued to take his deposition, an application showing that the witness is a nonresident, but not showing that he is not within the state, should be denied.

Appeal from special term, New York county.

Action by Charles E. Brown, trustee, against John W. Russell and another. From an order denying his motion for a commission to take the testimony of a nonresident defendant, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, McLAUGHHN, O’BRIEN, and INGRAHAM, JJ.

G. S. P. Stillman, for appellant.

John T. Sackett, for respondents.

The Code of Civil Procedure (section 887) regulates strictly these applications, and permits them to be granted only when it appears that the witness is not “within the state.” The fact that it appears only that the proposed witness is a nonresident, while her whereabouts is not stated, is not a compliance with that statute. In re Adams, 31 App. Div. 298 , 52 N. Y. Supp. 617 . For the want of that necessary allegation, this order must be affirmed, without prejudice, however, to another application upon proper papers. Order affirmed, with $10 costs and disbursements. All concur.