Brown v. Russell

68 N.Y.S. 755

Opinion

RUMSEY, J.

The Code of Civil Procedure (section 887) regulates strictly these applications, and permits them to be granted only when it appears that the witness is not “within the state.” The fact that it appears only that the proposed witness is a nonresident, while her whereabouts is not stated, is not a compliance with that statute. In re Adams, 31 App. Div. 298, 52 N. Y. Supp. 617. For the want of that necessary allegation, this order must be affirmed, without prejudice, however, to another application upon proper papers. Order affirmed, with $10 costs and disbursements. All concur.