Apollinaris Co. v. Venable
New York Supreme Court
Appeal from special term, New York county. Action by the Apollinaris Company, Limited, against George W. Venable and Moses Heyman for an infringement of a trade-mark. Defendants moved for a commission to examine witnesses residing at Cologne, Germany. From an order granting the motion, plaintiffs appeal.
1Opinion of the CourtBrady, J.
The power to issue a commission conferred by sections 887 and 889 of the Code of Civil Procedure exists where it appears by affidavit, on the application of either party, that the testimony óf 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 of the Code, and…
2Cases cited1 opinion
- Wallace v. BlakeThe Superior Court of the City of New York and Buffalo · 1889
3Cited by2 opinions
- Burnell v. ColesAppellate Terms of the Supreme Court of New York · 1898
- People v. City of BrooklynAppellate Division of the Supreme Court of the State of New York · 1897