Estrick v. Kobre

Seabury, J. The defendant appeals from an order directing a commission to issue to the American consul at the town of Husi, Roumania, to examine two witnesses in the plaintiff’s behalf. The defendant opposed the motion on the ground that the papers upon which it was made are insufficient, in that they do not specifically state that the witnesses sought to be examined were “ not within the state of New York.” It [40] is true that the moving papers fail to contain such an explicit allegation, and yet in the absence of any affidavit controverting the facts alleged in the moving affidavits I think they were sufficient to authorize the court to grant the motion. The affidavit upon which the motion was granted sets forth that the contract sued upon was entered into with certain persons in Roumania, that the witnesses sought to be examined at the time of making the contract ‘ ‘ resided and still reside at Husi, Roumania, ’ ’ and ‘ ‘ since deponent cannot procure the attendance of these witnesses upon the trial it is necessary that their testimony be taken by commission, ’ ’ etc. It is true, as pointed out by the appellant, that the allegation of “ residence ” abroad is not, in a technical sense, inconsistent with temporary presence within the state (Burnell v. Coles, 23 Misc. Rep. 615, 617), but, where all of the allegations of the affidavit are considered together and fairly construed, they are equivalent to the statement that the witnesses sought to be examined are not now within the state. Such seems to me to be the fair and reasonable interpretation to be placed upon the uncontroverted averments contained in the affidavit. Our present practice in these matters is already sufficiently technical, and there is no reason why the courts should go out of their way to insist upon allegations in an affidavit being made literally in the language of the statute, when in substance the provisions of the statute have been fairly complied with. This is especially so where no prejudice can result to the opposing party by the failure of his adversary to employ the exact language of the statute. In the absence of bad faith, the Code provision requiring the issuance of a commission upon interrogatories is mandatory. Oakes v. Riter, 118 App. Div. 772. In view of the fact that-the Code provision was substantially complied with, when the alie [41] gations of the plaintiff’s affidavit are fairly construed, the court below properly directed that the commission issue. Order appealed from affirmed, with ten dollars costs and disbursements. Guy and Delany, JJ., concur. Order affirmed, with ten dollars costs and disbursements.