The opinion
Rumsey, J.:
The Code of Civil Procedure (§ 887) regulates strictly these applications and permits them to be granted only when it appears that the witness is not “ within the State.” The fact that it appears only that the proposed witness is a non-resident, while her whereabouts is not stated, is not a compliance with that statute. (Matter of Adams, 31 App. Div. 298 .) For the want of that necessary allegation this order must be affirmed, without prejudice, however, to another application upon proper papers. ■
Order affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.