
    J. J. Spurr & Sons (Incorporated), Appellant, v. The Empire State Surety Company, Respondent, Impleaded with William W. Fischer, Defendant.
    Second Department,
    March 8, 1907.
    Practice — deposition — commission upon interrogatories must state to whom issued.
    A commission to take the testimony of a witness upon interrogatories under sec. tion 887 of the Code of Civil Procedure must name the person to whom it is issued or it Will he vacated. .
    Appeal by the plaintiff, J. J. Spurr & Sons (Incorporated), from an order of the Supreme Court, made at the. Kings County Special. Term and entered in the office of the clerk of the county of Kings on the 8th day of Hovember, 1906.
    
      Charles T. Terry [ William R. Conklin with him on the brief], for the appellant.
    
      Ferd. W. Buermeyer, for the respondent.
   Rich, J.:

This appeal is from an order of the Special Term denying plaintiff’s motion to vacate an order for -a commission to examine witnesses in the State of Hew Jersey upon interrogatories. The original order was defective, and the learned justice at Special Term sought to remedy the defect by an order providing that a commission issue in which no person was named as commissioner.

Authority to take the testimony of a witness upon interrogatories is found in section 887 of the Code of Civil Procedure. That section provides that the person to whom it is issued shall be named therein. Because of the failure to do this the order from which the appeal is taken is clearly defective. (Hemenway v. Knudson, 73 Hun, 227.)

The order must, therefore, be reversed, with ten dollars costs and disbursements, and plaintiffs motion to vacate and set aside the order for a commission granted.

Hirsohberg-, P. J., Jenks, Hooker and G-aynor, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.  