It is fairly to be inferred from the affidavits that the witnesses whose examination by commission is sought are not in the State of Hew York, but are now in the city of Amsterdam, Holland. There can be no question upon the affidavit that their testimony is material. It- is almost a matter of course in such cases to grant a commission to take testimony, and the defendant would be entitled to one, to take the testimony of these material witnesses, but for the fact that he has not given in his affidavit the names of some of the witnesses as required by section 887 of the Code of Civil Procedure, which prescribes that a commission may be issued to examine the witnesses named therein. It is difficult to see just how the witnesses who are not named in the affidavit can be named in the commission to be issued. It is quite true that J. H. Heinfeld is'named, and the commission to take his testimony should be granted. But there is nothing in the papers from which it can be learned who are the persons composing the firm of-Yon Eeghen & Co., sought to be examined. So far as they were concerned the order was correct, but so far as J. H. Heinfeld is concerned the defendant should have had his commission.
The order must, therefore, be reversed and the commissiqp. granted to take the testimony of J. H. Heinfeld, without prejudice to another application by the defendant for a commission to take the testimony of the persons in the firm of Yon Eeghen & Co. upon naming them, and such other persons as may be necessary, without costs of this appeal to either party.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Order reversed and commission granted to take testimony of Heinfeld, without prejudice to another application by defendant for a commission to take the testimony of the persons in the firm of Yon Eeghen & Co. upon naming them, and such other persons as may be necessary, without costs.