#### Wittenbrock v. Mabius *et al.*

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

Deposition—Commission to Take—Sojourners.

A person who lives in New Jersey, but does business in New York city, “sojourns” in such city, within Code Civil Proc. N. Y. § 916, providing that the place where a witness is required to attend to be examined under a commission to take testimony in an action pending in another state, “must be in the county in which he resides or sojourns. ” Van Brunt, P. J., dissenting.

Appeal from special term, New York county.

Action by Henry Wittenhrock against L. Mabius and others. Egbert Achtmann was subpoenaed to appear and be examined as a witness under a commission issued in the action. His motion to vacate the subpoena was denied, and he appeals. Code Civil Proc. N. Y. § 916, provides that “the place where the witness is commanded to attend must be within the county in which he resides or sojourns; or, if it is in another county, not more than 40 miles distant from his residence, or the place of his sojourn.”

*Henry C. Wilcox,*for appellant. *A. B. Porter,*for respondent.

Brady, J.

The appellant was subpoenaed to attend before a commissioner, to give testimony in an action pending in the superior court of Sacramento county, Cal., but moved to vacate the process upon two grounds: (1) That there was no proof presented to the learned justice showing his materiality as a witness; and (2) that he was neither a resident nor sojourner in this state. The motion was denied, and hence this appeal.

The application, in one respect, was a complete misapprehension of the provisions of the Code relating to the subject, and was so treated throughout. 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 j ustice of this court applied to has then nothing else whatever to do with the matter. If satisfied there is a commission, that is enough; and for the reason, not only, that it is so by the demands of the section mentioned, but for the reason that the issuance of the commission determines the materiality of the witness to be subpoenaed. It is only when a commission has not been issued (section 917) that a question is presented as to such materiality. The motion, for that reason, should have been denied, unless it appeared, as required by section 916, that the witness did not reside or sojourn in this county. It is conceded that he lives in the state of New Jersey, but does business in this city. Does such a person sojourn here? He has a temporary residence or abode here, undoubtedly, during business hours, and this makes him a sojourner. See Worcester and Webster. Indeed, a sojourner has an abode less temporary than a man who goes daily from his actual residence to a place where he does business; for that place, for certain purposes, and very important purposes, is one of temporary residence. The statute referred to, indeed, contemplates the examination of a traveler temporarily residing or abiding in the county in which he is required to appear. The definition of “sojourn” by the authorities already cited is “a temporary residence, as that of a traveler in a foreign land, a sojourner; to have a temporary abode; to live as not at home.” All that the statute designed to accomplish was to protect the witness from unnecessary inconvenience, by requiring his exam*734ination where he is, and a sojourner, even as a traveler, would be 'exposed to as little disturbance by a subpoena as possible. His examination there would be the least objectionable, if engaged in business, there can be no possible objection to his attendance at the place where he conducts it, and he becomes from that fact more, than a sojourner. He is one with a fixed abode during the business hours of the day; sojourning not as a traveler, but a *quasi*resident, for an object, and an important one. The order appealed from, for these reasons, should be affirmed, with $10 costs and the disbursements of the appeal.

Daniels, J.

I agree to the result, on the ground that the witness to be examined has not been aggrieved, or in any manner injuriously affected, by the order. It was his duty to appear and testify as he was directed by the subpoena, especially after the order was made denying his application to set aside the subpoena. Section 1347 of the Code vested him with no authority to question the order by an appeal. I agree, therefore, to an affirmance of the order.

Van Brunt, P. J.

I dissent. I cannot find that the .court ever acquired any jurisdiction whatever over the appellant.