(110 App. Div. 165.)

#### DAMBMANN v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

December 30, 1905.)

1. Depositions — Applications fob Commissions — Moving Papers—Sufficiency.

Code Civ. Proc. § 887, authorizes the issuance of a commission to examine witnesses not within the state, in cases specified in the following section. Section 888 authorizes such examination where an issue of fact has been joined and the testimony is material to the applicant. In an action for personal injuries, plaintiff moved for a commission to examine a physician, who was an eyewitness to the accident, and who attended plaintiff immediately after the accident and was in charge of her for some weeks thereafter. The moving papers showed that witness was a nonresident of the state, and stated a place where his testimony could be taken, but failed to show the exact place of residence of the witness, which, it was alleged, was unknown to plaintiff and her attorney. *Held,*that the testimony of the witness was necessary and material, and a commission to examine him upon interrogatories should have been granted, although the moving papers failed to show his exact place of residence.

[Ed. Note.—For cases in point, see vol. 16, Cent Dig. Depositions, § 51.)

2. Same—Nonresidence of Witness—Proof.

The mere fact that an alleged nonresident witness, for whose testimony a commission "is asked, has been seen in a restaurant in the county of trial, does not tend to disprove his nonresidence.

Appeal from Special Term, New York County.

Action by Emma A. Dambmann against the Metropolitan Street Railway Company. From an order denying a motion for a commission to examine a witness, plaintiff appeals.

Reversed.

Argued before O’BRIEN, P. J., and McLAUGHLIN, INGRAHAM, CLARKE, and HOUGHTON, JJ.

Boardman Wright, for appellant.

Bayard H. Ames, for respondent.

INGRAHAM, J.

The -plaintiff having made a motion for a commission to examine a Dr. Alfred Walton as- a witness upon oral questions, upon the hearing of the motion the defendant interposed a preliminary objection, on the ground that the affidavits upon which the order to show cause was granted did not state the legal residence bf the witness sought to be examined. The court sustained this objection and denied the motion, with leave to renew. The action was brought to recover for personal injuries sustained by the plaintiff in being violently thrown from one of the defendant’s cars. The affidavit upon which the motion was made stated that a Dr. Alfred Walton, who had been examined upon a former trial of the action, was a material and necessary witness for the plaintiff upon the new trial, as he was an eyewitness to the accident, was the first physician who attended the plaintiff after the accident, and was the physician in charge of the plaintiff’s case for some weeks thereafter. It was further alleged upon information and belief that he is not now in the state, but in the state of New Jersey; the grounds of the plaintiff’s belief being the statement made by Dr. Walton to the plaintiff on or about the 29th day of September, 1905, on which occasion he said that he resided in New Jersey *92and intended to remain there and would not be in New York for some months. In an additional affidavit submitted by leave of the court, the plaintiff alleged that she did not know the exact place of Dr. Walton’s residence; that she had inquired of his son, who stated that he did not know his father’s exact residence, and that Dr. Walton himself refused to say just where he lived; that she saw him at Morristown, N. J., on the street. There was also presented an affidavit of one of the plaintiff’s attorneys, who says that he communicated with Dr. Walton by telephone, who stated that his testimony could be taken by commission issued to Orange, Essex county, N. J., but that he had no knowledge of the exact place of residence of Dr. Walton.

I know of no section of the Code of Civil Procedure which requires a party to an action seeking to examine a witness who is out of the state on commission to be required to state his exact place of residence. Section 887 provides 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 tie issued to one or more competent persons named therein, authorizing them or any of them to examiñe the witness or witnesses named therein under oath. The facts shown bring this case within section 888 of the Code of Civil Procedure. The testimony of this witness is material and necessary for the plaintiff; he is no longer a resident of the state of New York, but tesides in the state of New Jersey, and is at present out of this state. The mere fact that the witness has been seen in New York in a restaurant does not tend to disprove the facts alleged. I think, therefore, the plaintiff was entitled to a commission to examine the witness upon interrogatories. There is nothing, however, in the papers to justify an oral examination of the witness.

It follows that the order appealed from should be reversed, and the motion granted for an examination upon written interrogatories and cross-interrogatories, with $10 costs and disbursements. All concur.