Pooler v. Maples — 1 Wend. 65

Majority

p. 65

Pooler vs. Maples.

Headnote

A commission may issue to take the testimony of a witness, residing out of the state, tho’ his domicil is here.

Motion for a commission to examine a witness. It was objected to the granting of the rule, that though the witness is at present absent from the state, he does not reside out of the state ; that his residence is in the county of Ulster, where his family now are, though he is, himself, in Pennsylvania, engaged as a contractor in constructing one of the canals in that state.

H. Ogden, for plaintiff.

iSherwood, for defendant.

By the Court,

The motion must be granted. Though the domicil of the witness be in this state, he resides out of the state, within the meaning of the statute, which was intended to facilitate the obtaining the testimony of witnesses who were beyond the reach of the process of our courts, and whose personal attendance at the trial could not be enforced.