82 A.D. 103 | N.Y. App. Div. | 1903
Lead Opinion
Upon a petition of the Attorney-General of the State of Delaware, a justice of the Supreme Court of this State issued a subpoena to the appellant, a resident of the borough of Manhattan, commanding him to appear in said borough at a time and place specified to testify in behalf of the plaintiff in a suit pending in the Superior Court of Delaware between the. State on the relation of its Attorney-General and the Delaware Surety Company, a corporation of that State. The appellant, upon notice, moved to vacate the subpoena upon various grounds, the substance of which is that its issue was not authorized by law.
Rule 5 of the Superior Court of Delaware, referred to in the application upon which the chief justice issued said certificate or order, provides that upon the application ■ of either party the prothonotary shall enter an order for taking the testimony of witnesses on behalf of such party without written interrogatories, upon oral examination and subject to cross-examination and re-examination
So far as disclosed by this record, there is nothing in the application for the commission or in the order or commission itself, showing that it was contemplated that the commission was to fie executed outside of the State of Delaware, or in this State. Ror do we- find anything in said rule 5 authorizing its execution beyond the jurisdiction of the court which issued it. The commissioner named is a resident of Delaware. The Attorney-General makes affidavit that the Superior Court is a court of record and is authorized by the statutes of Delaware to issue commissions for taking depositions in the State of Rew York and to appoint either a resident or non-resident commissioner ; that this commission is fully authorized by the laws of Delaware; and he states.in his petition for the subpoena that the testimony, if taken under this commission, “ is authorized to be received in evidence on the hearing of said suit in the Superior Court ” of Delaware. This, however, does not remove the objection, made under section 915 of the Code of Civil Procedure, which is the only authority by which the attendance of a witness can be compelled for this purpose, that it does not appear that the commission was issued to take testimony within this State. The disobedience of a subpoena issued by a court or judge pursuant to the provisions of section 915 of the Code of Civil Procedure is a cpntempt of court and punishable as such. It is manifest, therefore, that the .subpoena should not be issued based on the commission, unless it is shown that the commission was issued to take testimony within this State.. Owing to this omission, the subpoena was hot authorized^ and it becomes unnecessary to determine whether these provisions of the Code confer authority to require the attendance within .this State of a witness before a non-resident commissionei\
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the subpoena should be granted, with ten dollars costs.
Patterson, McLaughlin and Hatch, JJ., concurred.
Concurrence Opinion
I concur in result. I do not think that any foreign court can confer upon a foreigner the right to exercise semi-judicial functions in this State.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.