
    In re ADAMS.
    (Supreme Court, Appellate Division, First Department.
    June 28, 1898.)
    Commission—Written Interrogatories.
    In order to authorize an order for a commission to examine a witness on written interrogatories, under Code Civ. Proc. § 887, it must affirmatively appear by affidavit that the person whose testimony is sought to be taken “is not within the state.”
    Appeal from special term, New York county.
    In the matter of the assignment of Robert Adams to Charles E. Shade. William E. Ritchie appeals from an order granting a motion for commission to examine a witness not within the state on written interrogatories.
    Reversed.
    Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    William B. Tullís, for appellant.
    Raymond Reubenstein, for respondent.
   McLAUGHLIN, J.

The order appealed from must be reversed for the reason that the affidavit upon which it was granted fails to show that the witness whose testimony is sought to be taken is not within the state. The section of the Code of Civil Procedure (section 887) which authorizes testimony to be taken in this way only permits it to be done when it is made to appear by affidavit that the person whose testimony is sought to be taken “is not within the state.” The reason for requiring such fact to be shown is apparent. If a witness who resides in another state is at the time of the trial or the hearing of the proceeding actually within this state, then there is no necessity for taking his testimony by commission. He can be subpoenaed, and his testimony taken in the regular way. This is much more satisfactory and is always desirable when it can be done. The court thus has the benefit of observing the appearance and conduct of the witness while testifying, and the adverse party is afforded the privilege in the presence of the court of a cross-examination. This was the view taken in Apollinaris Co. v. Venable (Sup.) 10 N. Y. Supp. 469, and in Wallage v. Blake, 56 N. Y. Super. Ct. 519, 4 N. Y. Supp. 438. The section of the Code above referred to is, however, so plain and explicit upon the subject that the citation of authorities is unnecessary.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, without prejudice, however, to the respondent’s right to renew the same on additional papers. All concur.  