58 N.Y.S. 695 | N.Y. App. Div. | 1899
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
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.