
    Katherine Sullivan, as Administratrix, etc., of Daniel Sullivan, Deceased, Respondent, v. H. F. Taintor Manufacturing Company, Appellant.
    Second Department,
    May 26, 1911.
    Deposition — open commission—necessary allegations.
    An open commission to take testimony of non-resident witnesses should not issue where the moving papers do not specifically allege that at the time of the application the witnesses were not within this State.
    Appeal by the defendant, the H. F. Taintor Manufacturing Company, 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 Richmond on the 10th day of April, 1911, granting the plaintiff’s motion for an open commission to examine witnesses.
    
      James F. Barber [Bertrand L. Pettigrew with him on the brief], for the appellant. ■
    
      Rutherford B. Meyer [Eugene Lamb Richards, Jr., with him on the brief], for the respondent.
   Hirschberg, J.:

The plaintiff sues to recover the sum of $50,000 for the death of her intestate, alleged to have been caused by the negligence of 'the defendant in the operation of a factory at Bayonne in the State of New Jersey. When the action was at issue the plaintiff moved for an open commission to take the testimony of two witnesses, Walter Garlick and Adam Schaad. The affidavit accompanying the notice of motion states that the witnesses are necessary and material; that they reside in the State of New Jersey and that they were. respectively the superin-' tendent and assistant superintendent at the defendant’s factory at the time of the accident. There is no specific allegation that at the time of the application for a commission they or either of them were not within this State, as required by section's 887 and 894 of the Code of Civil Procedure. The necessity of compliance with this provision of the Code has been often adjudged. (See Matter of Adams, 31 App. Div. 298; Brown v. Russell, 58 id. 218; Fox v. Peacock, 97 id. 500.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs, but without prejudice to renewal upon additional papers.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs, but without prejudice to renewal upon additional papers.  