In re Garvey , 54 N.Y.S. 115 ( 1898 )

Giegerich, J.

The subpoena served upon James Duane Livingston is sought to be vacated upon three grounds. The first is that the application for a subpoena was not made on behalf of any of the parties to the suit in which the commission to take testimony within the state was issued. It appears, however, from the uncontradicted averment contained in the affidavit of Isaac Edward Garvey, that such application was made in behalf of the defendants' therein. It is next urged that there was no proof by affidavit that the testimony of the witness is material to the party seeking to take it, as required by section 915 of the Code of Civil Procedure. The affidavit of Mr. Matthew T. Johnston alleges, “ upon information and belief, that the testimony of the witnesses above named is material to the defendant in the said action of James Duane Livingston v. People’s Gas Light & Coke Company, and necessary for the proper defense of said action. The sources of deponent’s information, and the grounds of his belief as to the materiality of the testimony of said witnesses, are correspondence had between Seward, Guthrie & Steele, Esqs., the said Commissioner Isaac Edward Garvey, and Winston & Meagher, of Chicago, Illinois, attorneys for the said defendant, the People’s Gas Light & Coke Company.” It is claimed that this is insufficient, because the facts and circumstances showing the materiality of the testimony of the witness sought to be examined have not been shown; and a number of cases arising under section 872 of the Code of Civil Procedure have been cited in support of the contention. Such adjudications, however, in my opinion, have no application, for the reason that rule 82 of the general rules of practice, requiring the facts and circumstances to be specified, applies only to an examination under sections 870-872 of the Code. Moreover, it was held by Brady, J., in Wittenbrock v. Mabins, 57 Hun, 146, 147; 10 N. Y. Supp. 733, that “ the issuance of the commission determines the materiality of the witness to be subpoenaed.” It is further claimed (3) that the commission was insufficient, on the ground that it was not authenticated as required by section 905 of the Revised Statutes of the United States. Section. 915 of the Code merely requires the production of the commission, notice, or other paper authorizing the testimony to he taken. The commission in this matter is authenticated by the seal of the court out of which it was issued, and the signature of the clerk thereof. Besides, the genuineness of the same is not questioned by Mr. Livingston. As was said by Brady, J., in Wittenbrock v. Mabins, 57 Hun, 147; 10 N. Y. Supp. 733: “ Section 915 provides for the examination of a witness, when a commission has been issued for that purpose, in an action pending elsewhere, in which case the presentation of the commission requires the issuance of a subpoena. The justice of this court applied to has, then, .nothing else whatever to do with the matter. If satisfied there is a commission, that is enough.”

It follows from these views that the motion should he denied, and that the stay heretofore granted herein be vacated. Order to he settled on one day’s notice.

Motion denied and stay vacated.