deposition because the only estate asset is a parcel of real prop-
erty. The proponent also requests that the branch of her motion
seeking to dispense with the witness’ testimony be granted in
the event that the deposition is not conducted within 90 days of
the order directing the commission.
Barbara Smith asserts that the testimony by the second wit-
ness is important to clarify issues surrounding the execution of
the will. She further argues that the real property can be sold to
pay for the deposition.
As the testimony of the Florida witness may be obtained
‘‘with reasonable diligence,’’ SCPA 1405 (2) mandates that
Barbara Smith’s request to require the testimony of this wit-
834 29 MISCELLANEOUS REPORTS, 3d SERIES
ness by commission be granted. None of the parties cited any
authority on the issue of which party should pay for the com-
mission. SCPA 1404 (5) was enacted in 1999 because, prior
thereto, the cases were inconsistent on the issue of whether the
costs were to be paid by the proponent for at least two attesting
witnesses under all circumstances or by the party demanding
the deposition under certain circumstances (see Assembly Mem
in Support, Bill Jacket, L 1999, ch 460, at 3-4, 1999 McKinney’s
Session Laws of NY, at 1871-1873). SCPA 1404 (5) (a) (1)
adopted a middle position by providing that ‘‘[u]nless the court
directs otherwise for good cause shown,’’ the testator’s estate
shall pay the cost of the examination of (1) the first two attest-
ing witnesses within the state or (2) if there is no competent
witness within the state, ‘‘the witness without the state who
resides closest to the county in which the probate proceedings
are pending.’’ SCPA 1404 (5) (a) provides that ‘‘[t]he costs of all
other examinations . . . shall be governed by article 31 of the