
    Chandler A. Oakes, Respondent, v. Thomas B. Riter, Appellant, Impleaded with Murt K. Salsbury and Others, Defendants.
    First Department,
    April 19,. 1907.
    Deposition — when examination upon .interrogatories matter of right.
    In the absence of bad faith the provision of section 889 of the Code of Civil Procedure requiring the issuance of a Commission upon interrogatories is mandatory. All that is necessary to show upon a motion for such commission is that the action is one mentioned under section 888 of the Code of Civil Procedure and that the testimony of one or more witnesses not within the State is material to the applicant.
    The commission may in a proper case issue to examine a party as well as a witness.
    
      Appeal by the defendant, Thomas B. Biter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1907, denying said defendant’s motion for the issuance of a commission to take his testimony upon written interrogatories.
    . William If. Bennett of counsel [McElheny <& Bennett, attorneys], for the ajipellant.
    
      Albert I. Sire, attorney, for the respondent.
   Clarke, J. :

The defendant Biter is a non-resident of the State of New York and is now without the State, being in the city of Pittsburg, Pa., where lie resides. An issue of fact has been joined and the testimony of the defendant is material. Said defendant applied to the Special Term for an order for the issuance of a commission for the purpose of talcing his testimony to be used upon the trial upon written interrogatories.

The moving papers-set up the necessary facts as prescribed by sections 887 and 888 of the Code of Civil Procedure, and, in addition thereto, that said Biter was seriously ill and confined to his bed in the city , of Pittsburg.

Section 887 provides that “ In a case specified in the next section, where it appears by affidavit on the application of either party that the testimony of one or more witnesses not within the State is material to the applicant, a commission may be issúed * *. The applicant or any other party to the action may be thus examined.” Section 888 provides that “ Such a commission may be issued * * * 5. Where an issue of fact has been joined in an action pending in a court of record and the testimony is material to the applicant in the prosecution or defense thereof.” . Section 889 provides that “An order * * * must be granted upon satisfactory proof of the facts authorizing it unless the court or judge has reason to believe that the application is not made in good faith or unless an order for an open commission or for taking depositions is made as prescribed in this article*.”

There is nothing in these papers furnishing a reason' to believe that the application is not made in good faith. In the absence of bad faith the provision is mandatory. ■ All. that is necessary to appeár to justify the granting of the motion for a commission is that the action should be one mentioned under section 888, and that the testimony of one or more witnesses not within the State is material to the applicant. (Laidla v. Stimson, 67 App. Div. 545.)

“A commission may, in a proper case, issue to examine a party as well as a witness upon interrogatories pursuant to the provisions of section 887 of the Code of Civil Procedure.” (Ordway v. Radigan, 114 App. Div. 538.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and. the motion granted, with ten dollars costs.

Patterson, P. J., Ingbaham, Houghton and Lambebt, JJ., concurred.

Order reversed, with ten dollars costs’ and disbursements, and motion granted, with ten dollars costs. 
      
       Cole Civ. Proc. chap. 9, tit. 3, art. 3. — [Rep,
     