
    .In the Matter of the Application of Isaac Edward Garvey for the Issuance of Subpoenas to Appear before him as Commissioner. JAMES Duane Livingston, Appellant; The People’s Gas Light and Coke Company, Respondent.
    
      Deposition — witness subpoenaed to appear before a commissioner appointed under a foreign commission—he cannot question the sufficiency of the proof upon which the subpoena toas issued—proof of the materiality of the witness— the commissioner’s employment of an attorney.
    
    A witness who is required, hy a subpcena.issued by a justice of the Supreme Court, to appear and testify before a commissioner appointed in an action brought in a foreign court under a commission issued therefrom, has no standing to question the sufficiency of the proof presented to the justice issuing the subpcena.
    The “proof by affidavit” of the materiality of such witness’ testimony required hy the statute is not that- strict legal evidence required on applications made for the granting of attachments, orders of arrest and similar remedies of a severe character, hut is rather the formal proof usually called for in mere matters of practice; thus, an affidavit stating, upon information and belief, that the testimony of the witnesses named in the commission is material to the" defendants and necessary for the proper defense of the action, is sufficient.
    Even if such an affidavit is insufficient, the applicant is entitled, upon a motion by such witness to vacate the subpcena, to submit further proof of the materiality of the latter’s testimony in the case.
    The fact that a commissioner, to whom such a commission has been issued, employs an attorney to procure from a justice of the Supreme Court the sub- . pcena requiring the attendance of the witness before such commissioner, does not establish prejudice or improper action on the commissioner’s part.
    •Appeal by James-Duane Livingston from an order of the Supreme Court, made at the ¡New York Special Term, bearing date the 12th day of July, 1898, and entered in the office of the clerk of the county of ¡New York, denying his motion to vacate a subpoena issued by a justice of the Supreme Court, requiring him to appear before a commissioner, appointed in a suit in the Circuit Court of Cook county, Illinois, to be examined as a witness for the defendants ■ therein.
    The commission was sent from Illinois to the respondent Garvey, a notary public in this county and. State. Mr. Garvey employed the firm of Seward, Guthrie & Steele to procure the proper subpcena for the examination of Mr. Livingston, and the matter was left with a gentleman in the office of that firm, Mr. Matthew T. Johnston. The commission was thereupon presented to a justice of this court, together with an affidavit of Mr. Johnston, in which he states, upon information and belief, that the testimony of the witnesses named in the commission was material to the defendants in the action, and necessary for the proper defense of the action. He then states the sources of his information as follows: “ The sources of deponent’s information, and the grounds of his belief, as to the materiality of the testimony of said witnesses are correspondence had between Seward, Guthrie & JSteele, Esqs., the said commissioner, Isaac Edward Garvey, Esq., and Winston & Meagher, Esqs., of Chicago, Illinois, attorneys for the said defendant, The People’s Gas Light and Coke Company.” Mr. Livingston moved to vacate the subposna mainly upon the ground that this affidavit did not comply with the requirements of section 915 of the Code of Civil Procedure. He also claimed that the subpoena should be vacated because the commissioner, Mr. Garvey, was not disinterested, in view of the fact that he employed the attorneys in question to apply for the subpoena.
    
      Lewis L. Delafield, for the appellant.
    
      William F. Sheehan, for the respondent.
   Barrett, J.:

The papers which were presented to the justice were sufficient to confer jurisdiction upon that officer to issue the subpoena in question. The witness who was thus required to appear for examination under the foreign comhiission had no standing to question the sufficiency of the proof thus jiresented. So far as he is concerned the statute was complied with and the justice called upon to act when the commission was presented to that officer, with an affidavit which satisfied him that the appellant’s- testimony, was material to his adversary. The “proof by affidavit” of such materiality, called for by the statute, is not that strict legal evidence required in granting attachments, orders.of arrest and similar remedies of a severe character. (Olcott v. Evans, 21 N. Y. St. Repr. 812.) It is rather the formal proof usually called for in mere matters of practice. To illustrate: In applying for a commission in this State it must be made to: appear by affidavit that the testimony of the witness sought to be examined is material to the applicant. (Code, § 887.) If that affidavit is made by the party, he is only, required to state that the testimony of the witness is material, as he ■is advised by his counsel and verily believes. The affidavit may even be made by the attorney, of the applicant, or by his agent, or by any other person cognizant of the facts. (Beall v. Dey, 7 Wend. 513; Murray v. Kirkpatrick, 1 Cow. 210; Eaton v. North, 7 Barb. 631; Johnson v. Lynch, 15 How. Pr. 199.) It has always been the rule that such a hare statement pf materiality is prima facie. sufficient, and that it is not necessary to specify the' facts and circumstances which show that the examination of the witness is material and necessary. It certainly is not for the witness to criti-. cise the proof of materiality as defective or insufficient. That •should be left to the parties to the action. Even in very much more serious and important Blatters, as, for instance, in orders of publication, it has been held that a bare statement that the defendants, who were non-residents, “.cannot after due diligence be found within this State,” was sufficient “to call upon the judicial mind to determine whether due diligence had been employed to find the defendants,” and consequently that there was jurisdiction to grant the order. (Kennedy v. New York Life Ins. & T. Co., 101 N. Y. 487.) .The same rule has been applied where the jurisdictional facts were stated upon information and belief. (Seiler v. Wilson, 43 Hun, 629; Belmont v. Cornen, 82 N. Y. 256.) It is quite clear, therefore, that the general allegation of materiality made in the affidavit under consideration was sufficient to warrant the issuing of the subpoena, and certainly the witness has thereby been deprived of no substantial right.

The other points may be briefly disposed of. The original affidavit was properly made by am assistant of the attorneys employed by the commissioner to procure the subpoena. It is hypercritical to accuse the commissioner of prejudice because he acted for the party suing out the commission so far as to procure the necessary subpoena. If the law had authorized the commissioner to issue the subpoena, he ctiuld hardly be charged with partisanship for acting upon that authority. It was quite competent for the. commissioner to present his commission to a justice, of the court and ask for a subpoena. It was equally competent for him to request an attorney to do this for him. Such attorney could thereupon with entire propriety make and present a formal affidavit of materiality which the statute says shall accompany the presentation of the commission.

Lastly, the attorney’s affidavit, though upon information and belief was sufficient to confer jurisdiction. But even if his original statements were insufficient, the applicants had a right to answer the affidavits upon which the witness moved to vacate the subpoena. And they did so by further proof of materiality. It has been held that this was sufficient to sustain the subpoena. (Olcott v. Evans, 31 N. Y. St. Repr. 872.)

The order denying the motion to vacate was, therefore, right and should be affirmed, with ten dollars costs and disbursements.

Rumsey, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  