
    DARLING v. KLOCK.
    (Supreme Court, General Term, Third Department.
    December 8, 1893.)
    Deposition—Open Commission.
    It is error to grant an order for an open commission to take testimony in a distant state where the order authorizes the examination of any witness that may be produced by either party, but does not name or describe the witnesses, or limit them to persons residing in such state.
    Appeal from special term, Rensselaer county.
    Action by Henry H. Darling against Daniel Klock, Jr. From: an order granting an open commission to take testimony, defendant appeals.
    Reversed.
    The order appealed from is as follows:
    On reading and filing the affidavit of Henry H. Darling, verified the 29th day of May, 1893, making satisfactory proof that one or more witnesses-not within this state are material and necessary in the prosecution of this action, and on the pleadings and proceedings in this action, and on proof of due service of the annexed notice of motion with the copy of the said affidavit, and after hearing Lansing & Holmes, attorneys for plaintiff, and John H. Peck, attorney, and Hon. E. Countryman, of counsel for the defendant, in: opposition, now, on motion of Lansing & Holmes, attorneys for the plaintiff, ordered, that an open commission issue out of this court in this action: directed to Hon. A. A. Freeman, who is district judge, residing at Eddy.. Socorro county, New Mexico, to examine any witness who may be produced by either party on or before the 30th day of December, 1893, at a time and place within the territory of New Mexico, to be specified by written notice to the other party, upon oral questions to be put to the witness or witnesses when he is produced, as to the issues in this action, and to take a certified •deposition of each witness, and return the same, with the testimony, according to law, within the time specified; and it is further ordered, that said commissioner insert in the deposition all the questions asked and the answers given, word for word; and it is further ordered, that the said deposition- be returned as follows, namely, to the clerk of the county of Rensselaer and state of New York, through the mail, by depositing them in the post office of said commissioner in a prepaid wrapper directed to the clerk of the county of Rensselaer, Troy, New York.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Edwin Countryman, (John H. Peck, of counsel,) for appellant.
    Lansing & Holmes, for respondent.
   PUTNAM, J.

An order for an open commission should not be granted on motion of the plaintiff, without the strongest proof of its necessity, (Lentilhon v. Bacon, [Sup.] 20 N. Y. Supp. 488,) especially in a case like this, where its effect will probably be to compel the defendant to proceed with his counsel to the distant territory of New Mexico, and remain for a considerable time, necessarily incurring great expense. We think the order granted in this case should not be sustained. It authorizes the examination before the commissioner in New Mexico of any witness either party may produce. It does not name the witnesses, or assume to describe them. Any one from any part of the world may be examined. The plaintiff, under the order, could have all his testimony taken before the commissioner if he desired. The examination should certainly be limited to witnesses residing in New Mexico, or in that locality. Also the witnesses to be examined, if limited to persons residing in New Mexico, should be named or described. There are perhaps peculiar and extraordinary cases where an open commission may properly issue to examine unnamed •or undescribed witnesses. See Jemison v. Bank, 85 N. Y. 546; Jones v. Hoyt, 10 Abb. N. C. 324. We do not regard this as- such a case. In Hart v. Railroad Co., 67 Hun, 556-560, 22 N. Y. Supp. 401, the witnesses to be examined were described as the “present and past officers, agents, and clerks of the companies,” etc. The case of Parker v. Lithgoe, (Sup.) 13 N. Y. Supp. 949, referred to by respondent, was a peculiar one, and is fully explained in Kaempfer v. Gorman, (Sup.) 17 N. Y. Supp. 857. It cannot be deemed an authority to sustain the order granted in this case. Perhaps the affidavit was sufficient to authorize a commission to issue providing for the examination of Mills and the past and present officers and servants of the Socorro Mountain Mining Company, or the Rio Grande Smelting Company, without naming those officers of servants. But it goes farther than that, and allows the examination of any other resident of New Mexico or any other part of the world. The order should have limited the examination to witnesses residing in New Mexico, or in that vicinity, and should have named or described the witnesses, as in Hart v. Railroad Co., supra. The principal object of plaintiff in obtaining the commission seems to be to find witnesses, rather than to examine them. His affidavit states:

“That, owing to the peculiar circumstances in this case, plaintiff has been,, and he verily believes will be, unable to ascertain just who will be necessary witnesses tor him to establish his side of the case, until some of the parties In the territory of New Mexico implicated in and connected with the transactions set forth in the complaint have been examined,” etc.

He evidently does not know that there are material and necessary witnesses for him in New Mexico. On examination of parties in that territory connected with the transactions set out in the complaint it may turn out that there are no material witnesses there. The order should be reversed, with costs and disbursements, and the motion denied, with costs, but with leave to plaintiff to renew his motion. All concur.  