In re Adams

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 he taken is not within the State. The section of the Code of Civil Procedure (§ 887), which authorizes testimony to be taken in this way, only permits it to he 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 liis testimony by commission. lie 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 v. Venable (32 N. Y. St. Repr. 210) and in Wallace v. Blake (56 N. Y. Super. Ct. 519). 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 he reversed, with ten dollars costs and disbursements, and the motion denied, with' ten dollars costs, without prejudice, however, to the respondent’s right to renew the same on additional papers.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. . ■

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice, however, to respondent’s right to renew the same on additional papers.