Estrick v. Kobre

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 *40is 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…