
    Anchor Realty Company, Respondent, v. Bankers Trust Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Depositions — when justice of Municipal Court of city of New York must grant order for — Code Civ. Pro., § 768.
    A judge of the Municipal Court of the city of New York must grant an order for a commission to take testimony provided the moving papers, which under section 768 of the Code of Civil Procedure include the pleadings, make out a prima facie case and that the evidence sought is material.
    Where in an action brought in the Municipal Court of the city of New York to recover on certain cheeks drawn on and duly accepted by defendant before issuance to one E, and sold and delivered to plaintiff for value, the answer alleges that prior to the purchase plaintiff knew that the signature of E, whose testimony defendant desired to take hy commission, was obtained by fraud and that the cheeks after being countersigned by E were delivered for a special purpose and diverted therefrom, and that plaintiff through its president had knowledge of said fraud and diversion, the denial of a motion for the commission to take the testimony of E, who was out of the state, was error as was the failure of the justice to state the grounds for the denial of the motion.
    Appeal by defendant from a judgment and order of the Municipal Court of the city of New York, borough of Bronx, second district.
    
      White & Case (Walter A. Mulvihill, of counsel), for appellant.
    Hayes & Kerngood (Julius Davison and George B. Hayes, of counsel), for respondent.
   Guy, J.

Defendant appeals from a judgment in favor of plaintiff, after a trial without a jury, and from an order denying defendant’s motion for the issuance of a commission to take the testimony of a witness outside the state.

The action was brought to recover $320 with interest claimed to be due on sixteen travelers ’ checks issued by the Whitman County National Bank of Rosalia, Wash'., to one Rudolph Rozenzweig, each check being for $20, drawn on the defendant trust company, payable within two days from date of the counter-signature of Rosenzweig, and duly accepted before issuance by said defendant company. Said, checks were duly countersigned by Rosenzweig to the order of one Bennett, and, after subsequent endorsement, sold and delivered to the plaintiff company for value.

The answer denies that the defendant has information sufficient to form a belief as to the various allegations of the .complaint, and denies that any sum is now due and owing from defendant to the plaintiff, and sets up as separate and distinct defenses: First, that the counter-signature of Rosenzweig was obtained by fraud, with notice thereof to plaintiff, before parting with value for said checks; second, that said checks were delivered to one Curtis and one Davidson for a special purpose, of which the plaintiff had knowledge, and were diverted from such purpose by them and converted to their own use, with notice to plaintiff of such diversion, prior to the sale and delivery thereof to plaintiff.

Before considering whether or not the judgment in favor of plaintiff is supported by competent evidence, it is necessary to consider the order appealed from, denying, defendant’s motion for the issuance of a commission to take the testimony of Rosenzweig. The rule is well recognized that it is mandatory upon a Municipal Court judge to grant a motion for the issuance of a commission, provided the moving papers, which include,-under section 768 of the Code, the pleadings in the action, make out a prima facie case for the issuance of a commission, and that the evidence sought is material. Oakes v. Riter, 118 App. Div. 772.

•.The answer - alleges knowledge on the part of the plaintiff, prior to the purchase of the checks, that the signature of Rozensweig, whose testimony defendant desired to take by commission, wás obtained by fraud, and that the checks, after being so countersigned, were delivered-for a special purpose and diverted therefrom and that plaintiff, through its president, had knowledge of such fraud and of such diversion of the checks. This answer constituted part of the moving papers, and the evidence of Rosenzweig as to the facts and circumstances under which he countersigned the checks and delivered the same tm Curtis arid Davidson was material to the issues. The denial of the motion was, therefore, error, as was the failure of the justice to state the grounds for such denial. Daly Iron, Steel & Metal Co. v. United States Metal & Mfg. Co., 76 Misc. Rep; 576.

The judgment and order must, therefore, be reversed and a new trial ordered with thirty dollars costs to'appellant to abide the event, and motion for commission granted.,

Page and Philbin, JJ., concur.

Judgment and order reversed, and new trial ordered, with thirty dollars costs to appellant to abide event.  