#### Blanche A. Burnell, Appellant, *v.*William F. Coles, Respondent.

(Supreme Court, Appellate Term,

June, 1898.)

1. Open commission — Review by Appellate Term.

Where the requirements of the Code of Civil Procedure have been met, the Appellate Term will not review an order granting, an- open commission, as such an order involves the exercise of discretion upon the part of the court below.

2. Same — Affidavit.

Where the defendant’s papers, on his application for an open commission in an action for a breach of promise of marriage, do not show that his proposed witnesses are not within the state of New York at the time when the application is made, nor explicitly allege that the witnesses are material and necessary, where the name of no witness sought to be examined is given, or any fact or circumstance set out which it is claimed will prove or tend to prove the alleged defense, an order for an open commission must be reversed.

Burnell v. Coles, 23 Misc. Rep. 260, reversed.

Appeal by plaintiff from an order of the General Term of the City Court, affirming an order of the Special Term.

P. S. Jones (Henry J. McCormick, of counsel), for appellant.

Moore, Bleecker & Wheeler, for respondent.

Gildersleeve, J.

The Special Term of the City Court, on motion of the defendant, granted an order directing that an open commission issue to take the examination in Boston, Mass., of witnesses, to he named in 'the commission,.who might be produced before the commissioner designated in the order. The order also provides that the plaintiff may call and examine under the commission any witnesses fehe may be advised. This order was affirmed by the General Term of the* City Court, and the order of affirmance is now before us for review. The application for the order is made under section 894 ¡of the Code, which provides that “ where an issue of fact, joined in >an action, is pending in either of the courts specified in the last section (of which the City Court is one), the parties may *616stipulate, in writing, or tire court,, or a judge thereof, * * * may, in its or his ¡discretion, upon the application of either party, and upon satisfactory proof, by affidavit, that one or more witnesses, . not within the state, are material and necessary in the prosecution or defense of the action, make an order, upon such terms as it or he deems proper, directing that an open commission issue, or that depositions be taken, 'as prescribed in the following sections, of this article.” The appellant challenges the order, ,and asserts, as ground for reversal, that the moving affidavits are entirely insufficient to justify the granting of an Open commission. The granting or refusing of an order for an open commission to examine witnesses is not reviewable here, provided the -application therefor has met the requirements of the Code, and the court below has not exceeded its authority. It is not our province to review an order of the Oity Court involving the exercise of discretion by that court. Lawrence v. Samuels, 20 Misc. Rep. 279; Kreizer v. Allaire, 16 id. 6; Howell v. Mills, 53 N. Y. 322; Livermore v. Bainbridge, 56 id. 72. It is om duty, however, to examine the papers upon which the application for the commission is based, for the purpose of seeing whether a legal foundation has been laid for the order. If the affidavits are found to be insufficient to bring the ¡case within the law authorizing the application, no question was presented to the court below calling for the exercise of discretion. ' ■

The action is brought to recover damages for the alleged breach of a promise of marriage. One defense is that the plaintiff was of bad and immoral character, and, unknown to defendant, has been guilty of licentious and improper conduct. The defendant presents his own affidavit and the affidavit of one of his attorneys. From these' affidavits it appears that until. a short time before the commencement of the action, the plaintiff had been a resident of the •city of Boston, in the Commonwealth of Massachusetts, and that the persons, by whom defendant expects to prove the bad and immoral character and licentious and improper conduct of plaintiff, resides in and (about that city. . It is also stated in defendant’s affidavit that *“*some of the witnesses by whom deponent expects to prove the above-mentioned facts have expressed their willingness to testify, but many others have declared themselves unwilling so to do ; that deponent knows the names of many of the witnesses material to his said defense, and the reason why he does not give them now is that many of them are hostile and would evade giving testimony, if their names were disclosed at present, and many who are now will*617ing to give testimony would become unwilling; * * * that a commission authorizing the taking of depositions or the answering of interrogatories to be here settled will not meet the requirements of this case, nor can the defendant thereby obtain from the several material witnesses aforesaid a full and impartial statement of the facts within their knowledge.” The defendant then goes- on to state that he has been unable to find any person residing in this state who has sufficient knowledge of the alleged facts that he expects to prove by the witnesses residing in. and about 'the city of Boston, and adds, “ that there are no persons now residing within this state, to the knowledge of deponent, by whom such facts can be proved.” ~ The only addition to the foregoing averments, that is presented by the affidavit of the attorney, is the following: “ Deponent further says that he has seen several of these witnesses, and that the testimony they could give would be necessary to the defendant and competent to bis defense.” It will be observed that the affidavits fail to meet the requirements of the statute, in that it is nowhere averred that the witnesses, sought to be examined, " are not within the state.” An averment that the witnesses do not reside within .the state is held to be insufficient to justify the issuance of any commission. The proof must be that the witnesses are not within the state at the time that the application for the commission is made, which is a very different thing from a mere statement of nonresidence. Wallace v. Blake, 16 Civ. Pro. 384; Apollinaris Co. v. Venable, 10 N. Y. Supp. 469. It must also be said that if is not explicitly averred, nor can! it be reasonably implied, that the alleged witnesses in and about Boston are material and necessary in the defense .of the action. The nearest approach to supplying that requisite of the statute is found in the above-quoted portion of the attorney’s affidavit, which -says, "that the testimony they could give would be necessary to the defendant .and competent to his defense. We do not think that this averment is proof that the witnesses are material and necessary in the defense of the action. Abbott-Downing Co. v. Faber, 87 Hun, 299; Clark v. Sullivan, 28 N. Y. St. Repr. 596. Rot a single name of any witness, proposed to be examined, is given, and no fact or circumstance is set out which it is claimed, will prove or tend to prove the ¡alleged defense. Darling v. Klock, 74 Hun, 248. Moreover, it affirmatively appears- from the affidavits that some of the witnesses have expressed their willingness to testify. The testimony of these witnesses máy be sufficient to establish the defense. It certainly is not unreasonable to require that *618the willing witnesses should' be first examined by the ordinary method, before an open commission is granted. The power conferred by section 894 of the Code phould not be exercised, except in cases in which it clearly appears to be necessary for the purposes, of justice that there should be an open .commission. Heney v. Mead, 4 L. B. 10; Lentilhon v. Bacon, 48 N. Y. St. Repr. 864; Kaempfer Y. Gorman, 43 id. 800. An open commission will not be ordered, unless it satisfactorily appears that an ordinary commission will not accomplish the purpose sought. Dickinson v. Bush, 17 Week. Dig. 17; Kaempfer v. Gorman, 22 Civ. Pro. 35. Following the language of Mr. Justice Ingraham, in Einstein v. General Electric Co., 9 App. Div. 570, we may very properly say that what the defendant wants to do is to get'an order under which he can subpoena such' persons as he pleases, who reside in and about the city of Boston, examine them to ascertain whether or not they will testify to any facts which he thinks will support his defense, and by somewhat of a fishing examination, involving great expense to plaintiff, see if the facts exist which would aid his defense. It is not the true purpose of a commission to accomplish such an object.

We think the affidavits were insufficient to warrant the granting of the order, and that" the error of the court below, in. granting the same, was an error of law which wé are called upon to correct. .

The orders should be reversed and" the motion denied, with costs, with leave to renew motion on proper papers.

Bebkmah, P. J., and Giegbbich, E, concur.

Order reversed, motion denied, with costs, with leave to renew motion.