
    Andrew Tirpak, Respondent, v. Robert Hoe and Charles W. Carpenter, Appellants.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Depositions — Depositions on commission—Application for commission — Who may make affidavit — Sufficiency of affidavits; Not refused by delay which has not prejudiced adversary.
    Where, upon a motion for a commission to examine a non-resident witness, the allegations of the moving affidavits concerning the ' residence of the witness and his absence from this State are upon information and belief, the sources of such information and the grounds of such belief must be stated, and the reasons given why the affidavit of a person having personal knowledge of the matter is not produced; and, if the affidavit was made by the attorney for the moving .party, the reason must he given why such affidavit was not made by the party himself.
    Upon such motion, the affidavit of one. who was given in two other affidavits, made on information and belief, as the source of such information, that he was acquainted with the non-resident witness; that said witness now resides in the city of Newark, in the State of New Jersey, and is now in said State and not within the State of New York, is sufficient; the exact place of his residence need not be stated.
    Where such motion is made before the cause appeared on the day calendar for trial and there is nothing to indicate that plaintiff has been prejudiced by the delay, the motion may be granted as against an objection of laches.
    Appeal by the defendants from an order denying a motion to take the deposition of a witness without the State, entered in the City Court of the city of Hew York.
    Edward G-. Pringle, for appellants.
    Jones & Hekarda, for respondent.
   Gildersleeve, J.

This is an appeal from an order of the City Court denying defendants’ motion for a commission to take the deposition of a witness without the State. As the court below wrote m> opinion, we presume his reasons for denying the motion -are those urged by respondent’s counsel in support of the order. Three grounds are stated by the latter, in justification of the denial of the motion, as follows: (1) Laches; (2) insufficiency of two of the moving affidavits, because the nonresidence is alleged on information and belief; and (3) insufficiency of the moving affidavits, because no street number is given of the residence of the witness sought to be examined. Hone of these grounds is well founded. It is true that, where the allegations of the moving affidavits concerning the residence of the witness and his absence from this State are made upon information and belief, the sources of such information and the grounds of such belief must be stated, and a reason given why the affidavit of a person personally familiar with the matter is not produced; 'and, if the affidavit is made by the attorney for the moving party, a reason must be given why such affidavit was not made by the party himself. Fox v. Peacock, 97 App. Div. 501. In the case at bar there are three moving affidavits; the first by the attorney, the second by one of the defendants, and the third by one Bowers. The first two are on information and belief, giving said Bowers as the source of such information. The latter swears he is acquainted with Charles Wening, whose testimony defendants seek to take under a commission, and he states, as of his own knowledge, that said Charles Wening now resides in the City of Newark, in the State of Hew Jersey, and is now in said State and not within the State of Hew York.” It is true that he gives neither the number of the house nor the name of the street where the witness resides; but the affidavit used on a motion for a commission to examine a witness, who is resident of another State, need not set out the exact place of his residence. Dambmann v. Met. St. Ry. Co., 110 App. Div. 166. The facts shown by the moving papers bring this case within section 888 of the Code. The testimony of this witness is material and necessary to the defendants; he is not a resident of the State of Hew York, but resides in Hewark, in the State of Hew Jersey, and he is at present out of the State of Hew York. So far as laches are concerned, it is true that defendants have been slow in their procedure in this matter; but the motion was made, apparently, before the cause appeared on the day calendar for trial, and there is nothing to indicate that plaintiff has been prejudiced by the delay.

The order must be reversed and the motion granted, with ten dollars costs and disbursements.

Giegebich and Eblaegee, JJ., concur.

Order reversed and motion granted, with ten dollars costs and disbursements.  