
    NEW YORK SUPERIOR COURT.
    A. Belmont Purdy et al. agt. Horace Webster and another.
    
      ■Code of Civil Procedure, section 895 —When open commission to take testimony may issue.
    
    An open commission cannot be allowed where the testimony is to be taken elsewhere than in the United States or in Canada.
    On an application for an open commission, where the witnesses that the defendants proposed to examine did not reside in Florida, nor did it appear that they were at the time of such application in that State, but it did appear that they resided in the island of Cuba;
    
      Held, that such an order should not be granted unless it was made to appear that such a commission was absolutely necessary for the protection of the applicant’s rights.
    
      Special Term,
    
    
      March, 1886.
    
      James B. McKerran, for the motion.
    
      J. Hampden Dougherty, opposed.
   Ingraham, J.

By section 895 of .the Code an open commission cannot be allowed where the testimony is to be taken ■elsewhere than in ’the United States or in Canada.

The witnesses that the defendants propose to examine do not reside .in Florida, nor does it appear that they are at present in that State; but it does appear that they reside in the island of Cuba

This application, therefore, for an open commission appears to be intended to evade the prohibition contained in section 895, and I do not think such an order should be granted unless it is made to appear that such a commission was absolutely necessary for the protection of the applicant’s rights.

No reason is given here to show that it would be any more difficult for defendants to procure the attendance of the witnesses sought to be examined at New York than in Florida, except the difference in the expense, and as the evidence is for the benefit of the defendant it is not fair that the plaintiffs, should be put to the expense of employing counsel in Florida or sending a representative there to attend such an examination.

Under all the circumstances I think that the application for' an open commission should be denied. Defendants, however, may take an order for a commission in the usual form to examine-the witnesses named, either in Florida or in Cuba if they desira. Order can be settled on notice.  