
    Charles W. Clark, Resp’t, v. Sarah E. Sullivan, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    1. Depositions—Open commission—Affidavit for.
    An affidavit by an attorney upon which to found an open commission to examine a witness out of the si ate, stated only that the plaintiff had fully and fairly stated the case to him, his counsel, and had fully and fairly disclosed to him the facts which he intended to prove by the witness ; that the deponent believed that the testimony of the witness was material to deponent in the proescution of the action; that the witness was not within the state as deponent was informed and believed and that he was at Elgin, 111. Held, that the affidavit was wholly defective.
    2. Same—Witnesses.
    Upon such a commission either party under Code Civil Pro., § 897, may examine witnesses and the court cannot deprive either party of that right.
    Appeal from an order of the Monroe county court, allowing an open commision to issue for the examination of witnesses before commissioners in the state of Illinois.
    The order was granted on notice to the defendant’s attorney and was founded upon the affidavit of the plaintiff’s attorney, which constituted the only proof presented to the court, and the material part of the affidavit states: “That the plaintiff has fairly and fully stated the case in said action to Zachary P. Taylor, his connsel therein, and has fully and fairly disclosed to said counsel the facts which he intends to prove by the witness hereinafter mentioned; and deponent fully believes that the testimony of George P. Parkhurst is material to deponent in the prosecution of said action; that said George P. Parkhurst is not within this state, as deponent is informed and fully believes, but that said George P. Parkhurst is at Elgin in the state of Illinois.” The defendant appeared by her counsel to oppose the motion and made the preliminary objection, among others, that the affidavit was insufficient The order does not give the name of any witness who is to be examined.
    
      William H. Sullivan, for app’lt; Zachary P. Taylor, for resp’t.
   Barker, P. J.

The order under review was granted by another court and cannot be reversed or modified by this court except for legal error, as matters which rest purely in the discretion of the court are not appealable. The right of a party to an action to take the deposition of a witness out of the state, under a commission, to be read on the trial, is founded on the statute, and all its requirements must be observed by the moving party or the court has no power to grant an order for a commission to issue. McColl v. Sun Mut. Ins. Co., 50 N. Y., 332 ; In the Matter of an Attorney, 83 id., 164.

An open commission can only issue when it is made to appear by affidavit to the satisfaction of the court or officer to whom the application is made, that one or more witnesses, not within the state “ are material and necessary to the prosecution or defense of the action.” Section 894. The affidavit on which this order is founded was made by the attorney for the plaintiff, and his statements are wholly on information and belief, and he omits to declare that he believes that the evidence of the witness is necessary for his client in the prosecution of the action, and makes the single and immaterial statement that the evidence of the witness named therein is material to himself in the prosecution of the action. The statute gives either party the privilege, on the execution of an open commission, to produce before the commissioner witnesses and to examine them upon oral questions. Section 897.

This order requires the deposition of the witnesses who may be produced by either party to be taken upon written interrogatories and cross-interrogatories, to be annexed to the commission. The court below had no power to deprive the defendant of the right to examine his own witnesses or to cross-examine the plaintiff’s witnesses by propounding oral questions to them on their examination before the commissioner. This provision of the order was wholly unauthorized, and it seems to be absurd to require a party to prepare written interrogatories to be asked a witness whose name is not disclosed.

The moving affidavit is wholly upon information and belief, and the material part of it is based upon statements made by the plaintiff to his attorney, and no excuse whatever is made why he does not himself make an affidavit of the said facts upon which, the right to issue the commission depends, and of which the law supposes he has knowledge.

The affidavit does not constitute proof of any fact which the plaintiff was required to establish. Steuben County Bank v. Alberger, 78 N. Y., 252.

Order reversed, with ten dollars costs.and disbursements.

Dwight and Macomber, JJ., concur.  