(dissenting). A receivership proceeding is pending in the Court of Chancery of the State of New Jersey and an order *612was there issued appointing the petitioner commissioner to take in the State of New York the testimony of Abraham E. Lefcourt and Louis A. Haas, residents of the city of New York, for use in said proceeding. Pursuant to an application made by the commissioner, one of the justices of the Supreme Court, on May 8, 1931, issued a subpoena returnable on May 20, 1931. Thereupon the witnesses subpoenaed moved the Special Term of this court to vacate the subpoena on various technical grounds, such grounds in part being that the examination was not sought in good faith, that there was no pending action or proceeding, and that the petition did not show the examination to be material to issues in the New Jersey proceeding. The motion was granted at Special Term.
The requirements for the issuance of a subpoena under sections 310 and 311 of the Civil Practice Act are not as rigid as those for a deposition taken in this State for use therein, or as those for an examination before trial. In the latter two instances, the courts of this State must determine, for example, whether there are any material issues upon which the deposition may be had, or whether there is any pending action or proceeding in which it may be used. When the commission emanates from a foreign State, the mere issuance of the commission from the sister State, or the entry of the order therein, determines the materiality and necessity for the taking of the deposition for our courts, and the fact that there is an action or proceeding in which it is to be used.
The order of the New Jersey court having been entered in a “ proceeding ” (described in section 311 of the Civil Practice Act), which proceeding is still pending, there is no requirement that issues be set out in extenso. An averment in the petition that the testimony sought is material in the foreign suit and the recitals of the order of the court of a sister State that it has so determined require, under well-recognized rules of comity, that our courts give heed to the request that a commissioner be authorized to examine a witness, and that a subpoena here enforcible may issue.
The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the subpoena denied, with ten dollars costs, and a new date set for the examination.
Order affirmed, with ten dollars costs and. disbursements.