Opinion
March, 1929.
Present — Sears, P.J., Crouch, Taylor, Thompson and Crosby, JJ.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, on the ground that the witnesses to be examined are without the State of New York (Civ. Prac. Act, § 288), the testimony sought is material, and it cannot be held to be unnecessary simply because plaintiff may have knowledge as to the facts sought to be proved. ( Pierce v. Morris, 192 App. Div. 502; McGrath v. Blumenthal, 220 id. 781.) In the interest of convenience plaintiff should give defendant reasonable written notice of time and place of hearing to be had pursuant to the order of this court and the original notice of examination (Civ. Prac. Act, §§ 290, 291); and the plaintiff having elected to proceed under an open commission, he should, and he is hereby directed to pay defendant fifty dollars to meet the expenses of its representative at the hearing. (Civ. Prac. Act, § 294.) All concur.
Amd. by Laws of 1923, chap. 205. — [REP.