
    In the Matter of the Application for the Issuance of a Subpœna Duces Tecum to Frederick Strauss to Testify and Give Evidence at the Instance of the Plaintiffs in a Certain Action Pending in the District Court of Colorado, in and for the County of Arapahoe, wherein Clarence H. Venner and Others are Plaintiffs, and The Denver Union Water Company and Others are Defendants, and to Produce Certain Documents, Instruments and Records. Frederick Strauss, Appellant; Clarence H. Venner, Respondent.
    
      Commission issued out of a court of another State—a Supreme Court justice of the State of New York cannot issue a subpoena duces tecum to a witness named therein.
    
    A justice of the Supreme Court of the State of New York has no power to issue a subpoena duces tecum requiring a person named as a witness in a commission issued by a court of another State to produce books and papers before a commissioner acting under such commission.
    In order to justify the issuing of such a subpoena, the existence of some clear affirmative power conferred by statute upon the justice must be shown, ' and such power is not conferred by article 3 of title 3 of chapter 9 of the Code of Civil Procedure (§§ 914-920).
    Sections 854 and 855 of the Code of Civil Procedure do not apply to such a case.
    
      Appeal by the petitioner, Frederick Strauss, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of April, 1898, denying his motion to vacate a subpoena duces tecum.
    
    
      Frederick B. Van Vorst and David McClure, for the appellant.
    
      John W. Hutchinson, Jr., for the respondent.
   Ingraham, J.:

Upon the production of a commission issued to one Edward J„ McCabe, pursuant to an order entered February 18,1898, in an action pending in the District Court of the State of Colorado, in which Clarence II. Venner and others are plaintiffs, and the Denver Union Water Company and others are defendants, to take the testimony of Frederick Strauss and others, and upon the application of the plaintiffs in the said action, a justice of the Supreme Court issued a subpoena duces tecum requiring the said Frederick Strauss to appear and attend before the said Edward J. McCabe, the commissioner appointed aforesaid, to be examined, and to give his deposition at the instance of the plaintiffs in the action above described, and to bring with him and produce at the time and place mentioned certain documents, instruments and records therein named. Upon the said subpoena being served upon the witness, he obtained an order to show cause, returnable before one of the justices of this court at Special Term, requiring the plaintiffs in the action pending in Colorado to show cause why the said subpoena should not be vacated. The motion to vacate such subpoena was denied, and the witness appeals.

The only question argued before us was as to the power of the justice of the Supreme Court to issue a subpoena duces tecum, requiring the person named as .a witness in a commission issued by a court of another State to produce books and papers before a commissioner acting under such a commission, and that is the only question we shall consider on this appeal. The subject of the examination of witnesses in judicial proceedings is regulated by chapter 9 of the Code of Civil Procedure. Title 2 of that chapter is entitled, Compelling the attendance and testimony of a witness.” Title 3 is entitled Depositions,” and article 3 of that title is entitled “ Depositions taken within the State for use without the State.” The power to issue a subpoena duces teeum is sought to be sustained by sections 854 and 915 of the Code. The question as to the power of the court to compel the attendance of a witness before a commissioner appointed in a commission issued in an action pending in the court of another State has been before the Court of Appeals in the Matter of Searls (155 N. Y. 333). In that case the commission was issued out of the Circuit Court of Cook county, State of Illinois, in which court an action was pending, and in which commission a party was named as a material and necessary witness. This commission was intrusted in some way to a notary public of the State of Hew York for execution as commissioner, and he was actually engaged as such in taking the testimony of a defendant in that action as a witness. It was held by the Court of Appeals that the provisions of sections 854 and 855 did not apply to a case of this kind, for the reason that that section (§ 854) by its terms does not apply to a matter arising or an act to be done ” in an action in a court of record, and that “ this matter does arise in an action, and the action is clearly one in a court of record, though a court of a sister State.” It was also held that, as section 859 of the Code limits and qualifies section 854' so that it does not apply to a case where special provision is made by law for compelling the attendance of witnesses, and as section 915 of the Code contains provisions for compelling the attendance of a witness before a commissioner designated in a commission issued out of a court of another State in which an action is pending to take testimony within this State, section 854 did not apply, the court expressly holding that article 3 of title 3 of chapter 9 “ contains within itself all the provisions of law which the Legislature intended should be applicable to the case of a recalcitrant witness before a commissioner appointed to take the testimony of a witness here to be used in a suit pending in another State ;” and, further, that it must be shown that there was some clear affirmative power conferred by statute upon the judge to make the order before it can be upheld.” We are, therefore, confined to article 3, title 3, of chapter 9 of the Code of Civil Procedure for the power of a justice of the Supreme Court to grant this subpoena; and unless such power there appears the court had no power to issue the subpoena.

Article 3, title 3 of chapter 9 of the Code includes sections 914 to 920. By section 915 it is provided that “ where a commission to take testimony within the State has been issued from the court in which the action, suit or special proceeding is pending * * * for the purpose of taking the testimony within the State, * * * the commission, notice or other paper authorizing the testimony to be taken may be presented in behalf of the party desiring to obtain it to a justice of the Supreme Court, * * * with proof by affidavit that the testimony of the witness is material to the party. The judge must thereupon issue a subpoena to the witness, commanding him to appear before the commissioner named in the commission, * * * at a time and place specified in the subpoena, to testify in the action, suit or special proceeding.” As I understand the decision of the Court of Appeals in The Matter of Searls (supra), the necessary result of what was there held is, that unless the power to issue a subpoena duees tecum can be found in section 915 of the Code, that power does not exist. I do not find that this section gives a justice of the Supreme Court the power to issue such a subpoena.

At common law 'there was a writ known as a “ subpoena ad testificandum.” It is defined as a process to compel a witness to appear and give testimony, commanding him to appear before a court or magistrate therein named, at a time therein mentioned, to testify for á party named, under a penalty therein mentioned. There was also a writ known as a “ subpoena duces tecum,” which, in addition to requiring the attendance of a witness to testify, required him to bring and produce to the court books or papers in his hands tending to elucidate the matter in issue. (See Bouv. L. Dict.) Thus we have two distinct subpmnas recognized by the law. Section 915 authorizes a justice of the Supreme Court to issue a subpoena to a witness, commanding him to appear before a commissioner named in the commission to testify. Here the subpoena issued is clearly that known as á “ subpoena ad testificandum.” There is nothing to indicate that the power was given to a justice of the Supreme Court to issue any other subpoena, or to require a witness to produce before a commissioner any books or papers, or to do anything else than appear and testify ; and applying the rule as stated by the Court of Appeals, the respondents must show some clear affirmative power” conferred by the statute. As we fail to find the power-to issue a subpoena duces tecum granted, 1 think that such power does not exist; that the subpoena was unauthorized and should have been set aside.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the subpoena vacated.

Barrett, Rumsey and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and subpoena vacated.  