
    In the Matter of the Assignment of Robert Adams to Charles E. Shade, Respondent, for the Benefit of Creditors. William E. Ritchie, Creditor, Appellant.
    
      Commission to take testimony — the moving affidavit must shoio that the witness is not within the State of Nexo Tox'k.
    
    An affidavit which is the basis of an application to take the testimony of a witness out of the State upon commission must, under the requirements of section 887 of the Code of Civil Procedure, show that the person whose testimony is sought to be taken is “not within the State of New York.”
    Appeal by William E. Ritchie, a creditor of the assignor herein, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 10th day of May, 1898, directing that a commission issue to Providence, R. I., to take the testimony of such assignor upon interrogatories to he annexed to said commission.
    
      William B. Tullis, for the appellant.
    
      Raymond R&ubenstein, for the respondent.
   McLaughlin, J.:

The order appealed from must be reversed for the reason that the affidavit upon which it was granted fails to show that the witness whose testimony is sought to he taken is not within the State. The section of the Code of Civil Procedure (§ 887), which authorizes testimony to be taken in this way, only permits it to he done when it is made to appear by affidavit that the person whose testimony is sought to be taken is “ not within the State.” The reason for requiring such fact to be shown is apparent. If a witness who resides in another State is at the time of the trial or the hearing of the proceeding actually within this State, then there is no necessity for taking liis testimony by commission. lie can be subpoenaed and his testimony taken in the regular way. This is much more satisfactory, and is always desirable when it can be done.. The court thus has the benefit of observing the appearance and conduct of the witness while testifying, and the adverse party is afforded the privilege, in the presence of the court, of a cross-examination. This was the view taken in Apollinaris v. Venable (32 N. Y. St. Repr. 210) and in Wallace v. Blake (56 N. Y. Super. Ct. 519). The section of the Code above referred to is, however, so plain and explicit upon the subject that the citation of authorities is unnecessary.

The order appealed from must he reversed, with ten dollars costs and disbursements, and the motion denied, with' ten dollars costs, without prejudice, however, to the respondent’s right to renew the same on additional papers.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. . ■

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice, however, to respondent’s right to renew the same on additional papers.  