Wittenbrock v. Mabius — 32 N.Y. St. Rep. 819

Majority

p. 819

Henry Wittenbrock, Pl’ff, v. L. Mabius et al., Deft’s.

(Supreme Court, General Term. First Department

Filed June 6, 1890.)

Headnote

Depositions — Foreign commission.

A subpoena was served upon appellant to attend before a commissioner and give testimony in an action pending in another state. Appellant lives in Hew Jersey, but does business in Hew York state. He moved to vacate the process on the ground that no proof of his materiality had been shown and that he was neither a resident nor sojourner in this state. Held, that, the order denying such motion should be affirmed.

(Van Brunt, P. J., dissents.)

Appeal by Egbert Hchtman, a witness subpoenaed under a commission to take his deposition, from an order denying a motion to vacate the subpoena.

Henry C. Wilcox, for app’lt; A. B. Porter, for resp’t.

The appellant was subpoenaed to attend before a commissioner to give testimony in an action pending in the superior court of Sacramento county, California, but moved to vacate the process upon two grounds:

First That there was no proof presented to the learned justice showing his materiality as a witness, and,

Second. That he was neither a resident nor sojourner in this, state.

The motion was denied, and hence this appeal

The application in one respect was a complete misapprehension of the provisions of the Code relating to the subject, and was so treated throughout. 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 requires 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, and

Dissent

p. 820

for the reason not only that it is so by the demands of the section mentioned, but for the reason that the issuance of the commission determines the materiality of the witness to be subpoenaed. It is only when a commission has not been issued, § 917, that a question is presented as to such materiality. The motion, for that reason, should have been denied, unless it appeared, as required by § 916, that the witness did not reside or sojourn in this county. It is conceded that he lives in the state of Hew Jersey, hut does business in this city. Does such a person sojourn here? He has a temporary residence or abode here undoubtedly during business hours, and this makes him a sojourner. See Worcester and Webster.

Indeed a sojourner has an abode less temporary than a man who goes daily from his actual residence to a place where he does business, for that place for certain purposes, and very important purposes, is one of temporary residence. The statute referred to, indeed, contemplates the examination of a traveller temporarily residing or abiding in the county in which he is required to appear. The definition of sojourn by the authorities already cited is, “a temporary residence, as that of a traveller in a foreign land; a sojourner; to have a temporary abode; to live as not at home.” All that the statute designed to accomplish was to protect the witness from unnecessary inconvenience, by requiring his examination where he is, and a sojourner, even as a traveller, •would be exposed to as little disturbance by a subpoena as posible. His examination there would be the least objectionable. If engaged in business, there can be no possible objection to his attendance at the place where he conducts it, and he becomes from that fact more than a sojourner. He is one with a fixed abode during the business hours of the day, sojourning not as a traveller, but a quasi resident for an object, and important one.

The order appealed from for these Jasons should be affirmed, with ten dollars costs and the disbursements of the appeal.

I agree to the result, on the ground that the witness to be examined has not been aggrieved, or in any manner injuriously affected by the order. It was his duty to appear and testify as he was directed by the subpoena, especially after the order was made denying his application to set aside the subpoena; § 1347 of the Code vested him with no authority to question the order by an appeal. I agree, therefore, to an affirmance of the order.

I dissent I cannot find that the court ever acquired any jurisdiction whatever over the appellant

Order affirmed, with ten dollars costs and disbursements.