In re Obtaining the Testimony of Heller

| N.Y. App. Div. | Jun 15, 1899

Ingraham, J.:

The subpoena vacated by the order appealed from was issued under section 915 of the Code of Civil Procedure. The ground upon which it was vacated was that the papers upon which it ivas issued failed to show that the testimony of the witnesses was material to the party making the application. In Matter of Garvey (33 App. Div. 135) we held that a witness who was required to appear for examination under the foreign commission had no standing to question the sufficiency of the proof upon which the subpoena was allowed; that so far as he was concerned the statute was complied with when the commission was presented to a justice of the Supreme Court, with an affidavit which satisfied him that the witness’ testimony was material to a party to the action in which the evidence was to be taken. We think that, applying this rule, the affidavit of Charles M. Hough justified the court in issuing the subpoena. That affidavit expressly states “ that said witnesses are necessary and material witnesses.” Then it states what is expected to be proved by them. It is apparent that the facts sought to be proved by the witnesses, as stated in this affidavit, would be material upon the question of the validity of a claim to the fund in controversy ; and the parties having claims upon the fund in the hands of the plaintiff, where the action is brought to distribute the fund, are entitled to show that a demand upon which a party makes a claim against that fund is not a valid claim. As was said in The Matter of Garvey (supra), “ It certainly is not for the witness to criticisethe proof of materiality as defective or insufficient. That should be left to the parties to the action.”

The order appealed from should be reversed, with ten dollars-costs and disbursements, and the motion to vacate the subpoena denied, with ten dollars costs, to be paid by the respondents.

Patterson, O’Brien and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, to he paid by the respondents.