The power to issue a commission conferred by §§ 887 and 889 of the Code of Civil Procedure exists where it ap*211pears by affidavit on the application of either party that the testimony of a witness not within this state is material to the applicant.
The commission applied for herein was based upon an allegation that certain witnesses named, and who were material, were-residents of Prussia; but there was no allegation that they were not at the time of the application within this state, and the affidavit did not therefore comply with the requirements of the provisions^ the Code, and was insufficient
This result was declared by the general term of the superior court in the action of Wallace et al., v. Blake et al., and reported in the 16th Civil Procedure Rep., 384; 22 N. Y. State Rep., 425.
A commission to examine witnesses living abroad who are material is founded upon necessity, which would not exist if the witness though residing abroad were within this state. His examination could then be taken viva voce and the adverse party secured the valuable privilege of such a cross-examination. This view doubtless influenced the adoption of the provision of the statute requiring proof that the non-resident witness was not at the time of the application within this state.
It might well be that the witness though resident abroad was within this state, either sojourning or upon business, and if so he-should be examined de bene ess* according to the provisions of the Code relating to that procedure.
For these reasons the objection taken to the infirmity of the affidavit thus discussed was a good one, and the motion should have been denied for that reason.
The result of this appeal must be, therefore, a reversal of the order with ten dollars costs and disbursements and without prejudice to another application for a commission if the defendants, think it necessary. Ho doubt is entertained of the right of the defendants to examine witnesses for the purpose of proving what it is alleged can be substantial by the affidavits submitted herein.
Ordered accordingly.
Van Brunt, P. j., and Daniels, J., concur.