(dissenting):
Sections 818 and 814, article 1, title 3, chapter 9, of the Code of Civil Procedure plainly require personal service within the State on the person, sought to be examined, of an order for the examination of a party or a witness pursuant to that article. (Tebo v. Baker, 77 N. Y. 33.) It is not a prerequisite to the granting of the order that such person be a resident of the State. Non-residents frequently come here, especially from nearby places, and it may fairly be assumed that residents of Philadelphia are frequently in the city of New York, and may, therefore, be personally served with process within this State. The reason, therefore, for granting an order for the examination within the State of a non-resident party is not sufficient to justify the extension of the statute to a case not within it. Indeed,.it is a sufficient reason to vacate an order that it was not applied for in good faith with a reasonable expectation on-the part of the applicant of being able to serve it within the State,' e. g., when the party sought to be examined resides at a place so remote that there is no likelihood of his being within the State. (Gilroy v. Interborough-Metropolitan Co., 120 App. Div. 883; Wallace v. Bacon, 143 id. 211.) In the last *627case Presiding Justice Ingraham said: “Where a party sought to be examined resides in a foreign country and is not at the time of the granting of the order and never has been within this State, and there is no possibility of ever being able to serve the person sought to be examined, there is ground for saying that the order for the examination of such person within this State was not for the purpose of obtaining the testimony, but as a basis for some further application to the court because of the failure of the person required to appear for examination to appear and be examined.” We should not permit an order to be used as the basis of an application when we would vacate it if it appeared on the face of the papers that it was obtained for such use.
The service on the attorney was ineffectual. The plaintiffs have not in any sense disobeyed or disregarded an order which ■ as to them can have no vitality until it is personally served upon them within the State. The case is not one of an attempt by a party to evade the process of the court. None of the cases cited by my brother Laughlin go so far as to support the order about to be made, and a recent decision by this court in the Second Department is directly opposed to it. (Goldenberg v. Zirinsky, 114 App. Div. 827.)
Article 2 of said title provides for the taking of depositions without the State for use within the State. Section 887 provides that the “ applicant, or any other party to the action may be thus examined.” Section 888 provides that “such a commission may be issued, in either of the following cases: * * * 5. Where an issue of fact has been joined, in an action pending in a court of record, and the testimony is material to the applicant, in' the prosecution or defense thereof. ” It is within the discretion of the court whether a deposition under article 2 be taken upon written interrogatories or oral questions (See § 893), but unless good reason should be shown for providing otherwise, the court would doubtless issue ■ an open commission for the examination of parties residing so near to the city of New York as Philadelphia. It thus appears that the statute has expressly provided for the taking of depositions of both parties and witnesses, both within and without the State, for use within the State. Said article 1 provides for the taking within *628the State of the deposition of a party or witness whose testimony “is material and necessary for the party making such application, or the prosecution or defense of such action ” (§ 812, subd. 4), in case personal service on the person sought to be examined can be made within the State. Article 2 provides for the taking without the State of the deposition of a party or witness whose “testimony is material to the applicant ” in the prosecution or defense of the action, and obviously was intended to cover cases in which personal service within the State could not be made. If the defendant really desires to examine the plaintiffs, who reside in Philadelphia, it should go about it in the way provided by the statute. It will certainly be no more inconvenient for it to send a lawyer to Philadelphia or to employ one there to. conduct the examination than it will be for three plaintiffs to come to ¡New York for its accommodation.
It surely will not be urged that this court has the power to require the plaintiffs to come to ¡New York to submit to an examination before trial, or that it may directly impose that requirement as a condition of their right to prosecute an action in the courts of this State. That is' the effect of the order about to be made, and even conceding the power to do indirectly what may not be done directly, I think we should not exercise it in the face of express statutory provisions governing the case, and, therefore, vote to affirm the order.
Order reversed, with ten dollars costs and. disbursements, and motion granted, with ten dollars costs.