Sullivan v. H. F. Taintor Manufacturing Co.

144 A.D. 797, 129 N.Y.S. 598, 1911 N.Y. App. Div. LEXIS 4243

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 1911
• Status: Published

Opinion

Hirschberg, J.:

The plaintiff sues to recover the sum of $50,000 for the death of her intestate, alleged to have been caused by the negligence of 'the defendant in the operation of a factory at Bayonne in the State of New Jersey. When the action was at issue the plaintiff moved for an open commission to take the testimony of two witnesses, Walter Garlick and Adam Schaad. The affidavit accompanying the notice of motion states that the witnesses are necessary and material; that they reside in the State of New Jersey and that they were. respectively the superin-' tendent and assistant superintendent at the defendant’s factory at the time of the accident. There is no specific allegation that at the time of the application for a commission they or either of them were not within this State, as required by section's 887 and 894 of the Code of Civil Procedure. The necessity of compliance with this provision of the Code has been often adjudged. (See Matter of Adams, 31 App. Div. 298; Brown v. Russell, 58 id. 218; Fox v. Peacock, 97 id. 500.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs, but without prejudice to renewal upon additional papers.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, but without prejudice to renewal upon additional papers.