(dissenting.) The bond or undertaking upon which plaintiffs seek to recover in this action was given to make effectual a stay of the trial of certain cases until the return of a commission issued under the order of the court in the actions. The bond recites the order, the provision for the stay until the return of the commission issued to take the testimony of the witness named, and then provides as follows: “I, Amos Rogers, of No. 45 Broadway, New York city, do, pursuant to the above order and stipulation, undertake that the said Rowland N. Hazzard will pay any judgment that may be recovered against him in these cases, or either of them, over and above the sum of $7,500, secured to be paid by the American Surety Company as aforesaid.” And it is to recover the amount of these judgments subsequently obtained against Hazzard over and above the sum of $7,500 that this action is brought. The order of the court recited in this bond or undertaking provides for the issuing of a commission, and then contains a provision that the trial of the action be stayed until the return of the commission, provided the defendant shall within 10 days file an undertaking, to be approved, and conditioned that said defendant will pay any judgment or judgments that may be recovered against him in the above-entitled'actions, or either of them. The order granting the stay having been recited in the bond, and the bond having been given in pursuance of the order, we must construe the bond and the order so far as they throw light upon each other, and thus arrive at the intention of the court and of the parties, (Sonneborn v. Libbey, 102 N. Y. 550, 7 N. E. Rep. 813;) and, construing them together, it seems to me that the intention of the court and the parties is obvious. The order was entered in pursuance of sections 887 and 888 of the Code, and it was to obtain the deposition of a witness not within the state, material to the defendant as testimony upon the trial on the issues raised by the pleadings. The Code provides for the issuing of such commission, and the court has power to stay the trial of the action until the return of such commission. The sole object for such commission is to obtain the testimony of a witness who is without the state, and whose presence at the trial cannot be enforced by subpoena; and provision is made by section 910 of the Code tl.at, where it appears by affidavit that the personal attendance of the witness upon the trial could have been procured with due diligence, an order for the suppression of the deposition may be made by the court upon the application by the party aggrieved, upon notice to the adverse party. Considering the undertaking and the order together with these provisions of the Code, it seems to me that the intention of the court and the parties was to procure the testimony of the witness whose deposition was to be taken. To do that it was necessary—as he was then without the state—to issue a commission to take his deposition, and it was also necessary, in order to have the benefit of the witness’ testimony upon the trial, that the trial of the action should be stayed until the return of the commission or the return of the witness to the state. The court granting the stay required as a condition that the defendant in that action give a bond to secure the payment of any judgment that the plaintiff should obtain against him, and that bond was given. The commission was issued, and the stay became operative. The object of that stay, however, was simply to make the order for the commission effective for the purpose for which it was given, viz., to procure the testimony of the proposed witness for use at the trial. There was no express condition in the bond that the stay should continue until the commission was returned; and, as soon as the witness returned within this state with intention of remaining here, so that his attendance at the trial could be procured, the commission issued to take his testimony became inoperative. It could not then be executed and returned, because the witness was not at the place to which it had been issued, to execute it. The return of the commission therefore became impossible. By the stay the defendant in the action had obtained what he desired. He was in a position to have *158the benefit of the testimony of the witness on the trial of the action. The witness was within the jurisdiction of the court, subject to its subpoena, and the defendant had the opportunity of obtaining his testimony upon the trial of the action. The return of the commission became impossible: but, if it had been possible, it would have been unavailing, because, under section 910 of the Code, the court would have been justified in suppressing the commission upon evidence that the witness had returned, and could be produced on the trial. The stay that was procured by the giving of the bond was effectual until the return of the witness to the jurisdiction of this court, and upon such return the advantage to the defendant in the suits in question had been gained, just as much as if the commission had been returned, and the consideration for the giving of the bond or undertaking was complete. The subsequent vacation of the stay had no more effect than if it had been vacated by the return of the commission, so far as the liability of the defendant was affected. I think, therefore, the court below was right in directing a verdict for the plaintiffs, and the judgment should be affirmed, with costs.