74 N.Y.S. 684 | N.Y. App. Div. | 1902
This is an action for an accounting as between the members of a copartnership called the Pittston Knitting Company, Limited. Issue was joined by the service of an answer by. one of the defendants. It does not' appear whether the other defendants have been served or not. The plaintiff then made a motion for a commission to take the testimony of certain witnesses named, upon interrogatories annexed to the commission. The motion was made on the affidavit of one of the plaintiff’s attorneys, who swears that certain witnesses (naming them) reside in the State of Pennsylvania and are not within this State; that these persons are material witnesses to prove the allegations ■ of the complaint; that the Pittston Knitting Company is a copartnership existing and doing business in Pennsylvania, and that all the persons interested in said company and all the persons familiar with the facts in regard thereto are residents of the said county of Luzerne, Penn., except the defendant Daniel M. Stimson, and that these witnesses are not within the State of Kew York, but within the State of Pennsylvania, where all of the said parties reside; that the sources of deponent’s information and the grounds of his belief are interviews and correspondence which he has had with various persons named living in Luzerne county, Penn. There was no affidavit submitted’ in opposition to this motion.
We think the affidavit is sufficient to bring the case within sections 887 and 888 of the Code of Civil Procedure. By section 887 it is provided that “ In a case specified in the next section, where it appears by affidavit, on the application of either party, that the testimony of one or more witnesses not within the State is material to the applicant, a commission may be issued.” That this is a case mentioned in subdivision 5 of section 888 of the Code is clear. An issue of fact has been joined in this action which is pending in the Supreme Court, and the affidavit shows that the testimony of the witnesses named is material to the applicant in the prosecution of the action. All that is necessary to appear to justify the granting of a motion for a commission is that the action should be one named
In the case of Einstein v. General Electric Co. (9 App. Div. 570), cited by counsel for defendants, no particular witness was named who could testify to any fact which was material, and the plaintiffs attorney who made' the affidavit said that he did not know the name of any witness who could testify, and the order in that case was for an open commission and not for a commission upon interrogatories.
We think the affidavit is sufficient to justify the court in granting a motion for a commission, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Van Brunt, P. J., McLaughlin and Laughlin, JJ., concurred..
Order reversed, with,ten dollars costs and disbursements, and motion granted, with ten dollars costs.