81 N.Y.S. 338 | N.Y. Sup. Ct. | 1903
This is an application to vacate a subpcena served on the applicant, requiring him to appear and be examined in this State before a commissioner named in a commission issuing out of the State of Delaware, for use in an action pending in that State. The single question up for consideration is whether the subpoena can stand and attendance be enforced, inasmuch as the commissioner named is not a resident or citizen of this State, but comes from the State of Delaware, to which he owes allegiance, for the sole purpose of executing the commission.
The question is narrow and novel, and search has failed to disclose any authority pro or contra. Yet the question is not difficult. Starting with the premise that the Legislature has in
There is, of course, no inherent power in the court or in any of its officers to compel a person in this State to give testimony for use without the jurisdiction. Such authority as there is for taking the testimony of a witness in this State for use without it is contained in sections 914 and 915 of the Code and rule 17 of the General Rules of Practice. Matter of Spinks, 63 App. Div. 236. The reason for the enactment of those sections is to he found in principles of comity. Even as we expect our sister States, as well as foreign countries,- to assist us in the administration of justice within our territorial jurisdiction, so we have made provision to lend them similar aid. And where our enacted laws have been insufficient to give the full measure of substantial relief sought, we have amended our statutes, not for our benefit, but for theirs, so as to give them the testimony asked. So when it was found that there was no authority for an issuance of a subpoena duces tecum to compel the production of books and papers in a proceeding of this kind (Matter of Strauss, 30 App. Div. 610), the Legislature gave the remedy by amendment. Laws of 1899, chap. 502. And again, where the remedy seemed jeopardized by inability, under the existing law, on the part of the court, or the officer taking the deposition, to punish a recalcitrant witness for contempt (Matter of Searls, 155 N. Y. 333; People ex rel. McDonald v. Leubischer, 34 App. Div. 577) a provision was added to meet this condition. Laws of 1899, chap. 502.
These amendments and decisions are- referred to for the purpose of showing the liberality that has characterized successive enactments and the "broad conception of comity on which they have proceeded. The primary aim has been to enact a statute that shall be sufficiently broad to give complete assistance to the court to which we extend comity.
Turning now to the Code we find but three sections referring to depositions taken within the State for use without the State. Section 914 provides that a party to an action pending in a court without the State may obtain the testimony of a witness and in connection therewith the production of books and papers. Section 919 prescribes the manner of taldng and of making return to the foreign court, regulating the practice according to the
The Legislature might, in its wisdom, have provided that depositions for use without the State should only he taken before commissioners who are residents or citizens of this State. It has not done so. There is no rule of construction of which I am aware, nor any constitutional or statutory provision, preventing it from enacting a law enforcing attendance before any person named by a foreign court. This it seems to have done in the broadest language possible, and under it I hold that there was full power in this court to command attendance before the commissioner named, who owed no allegiance to this State, but who was a citizen and resident of the State of Delaware and who ■came into this State for the sole purpose of executing the dedimus •of the Superior Court of that State.
It may be said in passing that the fact that the procedure here ■adopted is unusual is no additional reason for declaring it illegal. That the execution of commissions is intrusted as a general rule do residents of the State in which the witnesses are, is in the over
Finally, a word should, be said in answer to the claim of the applicant that the designation by a foreign court of a nonresident or alien may involve the invasion of the rights of our citizens and- of their undue harassment without limitation. There might be some force to. the point were the examination allowed without application to our courts. Such, however, is not the case. Rot only must,there be compliance with the jurisdictional requirements of the Code, but in addition rule 11 of the General Rules of Practice prescribes that the verified petition called for by section 915 of the Code must contain' a general statement of the nature of the action or proceeding, show that the testimony of the ■witness is material to the issue therein presented, and show by copies, or by alleging their substance, the authority pursuant to which the deposition is taken and “unless the court or judge is satisfied that the application is made in good faith to obtain testimony within sections 914 and 915 of the Code of Civil Procedure, he shall deny the application.” Parties and witnesses are thus amply protected. Beyond this, a witness has the right to move to vacate the subpoena for jurisdictional defect, but he cannot attack for insufficiency the proof by affidavit made to the court on the basis of which the subpoena was granted. Matter of Garvey, 33 App. Div. 134; Matter of Heller, 41 id. 595; Matter of Dittman, 65 id. 343. Ro question, however, is raised on any point beyond the strictly jurisdictional one, and as to that, for the reasons stated, I have concluded to deny the motion, with $10 costs.
Motion denied, with $10 costs.