
    (118 App. Div. 772)
    OAKES v. RITER et al.
    (Supreme Court, Appellate Division, First Department.
    April 19, 1907.)
    Depositions—Right to Take—Statutory Provisions.
    Code Civ. Proc. § 887, provides that in cases specified in section 888, where it appears by affidavit on the application of either party that the testimony of a witness not within the state is material, a commission may be issued to examine the witness upon written interrogatories. Section 888, subd. 5, provides that such a commission may be issued where an issue of fact has been joined and the testimony is material to the applicant. Section 889 provides that the application must be granted upon satisfactory proof of the facts authorizing it, unless the court has reason to believe that the application is not made in good faith. Held, that where, on a motion for a commission to take defendant’s testimony, the moving papers set up the necessary facts as prescribed by sections 887 and 888, and there was nothing in the papers furnishing reason to beIieve that the application was in bad faith, the defendant was entitled as of right to have the commission issue.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Depositions, § 4.]
    Appeal from Special Term, New York County.
    Action by Chandler A. Oakes against Thomas B. Riter, impleaded with Mutt IC. Salsbury and others. From an order denying his motion for the issuance of a commission to take testimony upon written interrogatories, Thomas B. Riter appeals. Reversed, and motion granted.
    Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and LAMBERT, JJ.
    McElheny & Bennett (William M. Bennett, .of counsel), for appellant.
    Albert I. Sire, for respondent.
   CLARKE, J.

The defendant Riter is a nonresident of the state of New York and is now without the state, being in the city of Pitts-burg, Pa., where he resides. An issue of fact has been joined, and the testimony of the defendant is material. Said defendant applied to the Special Term for an order for the issuance of a commission for the purpose of taking his testimony to be used upon the trial upon written interrogatories. The moving papers set up the tiecessary facts as prescribed by sections 887 and 888 of the Code of Civil Procédure, and in addition thereto that said Riter was seriously ill and confined to his bed in the city of Pittsburg,

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 be issued. * * * The applicant or any other party to the action may be thus examined.”

Section 888 provides that:

“Such a commission maybe issued: * * * (5) 'Where an issue of fact has been joined in an action pending in a court of record and the testimony is material to the applicant in the prosecution or defense thereof.”

Section 889 provides that:

“An order * * * must be granted upon satisfactory proof of the facts authorizing it, unless the court or judge has reason to believe that the application is not made in good faith, or umess an order for an open commission or for talcing depositions is made as prescribed in this article.”

There is nothing in these papers furnishing a reason to believe that the application is not made in good faith. In the absence of bad faith, the provision.is mandatory. All that is necessary to appear to justify the granting of the motion for a commission is that the action should be one mentioned under section 888 and that the testimony of one or more witnesses, not within the state, is material to the applicant. Laidlaw v. Stimson, 67 App. Div. 545, 74 N. Y. Supp. 684. “The commission may, in a proper case, issue to examine a party, as well as a witness, upon interrogatories, pursuant to section 887 of the Code of Civil Procedure.” Ordway v. Radigan, 114 App. Div. 538, 100 N. Y. Supp. 121.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.  