125 N.Y.S. 845 | N.Y. Sup. Ct. | 1910
This is a motion by defendant for a stay of proceeding’s until plaintiff (who is a resident of Brattleboro, Vt., and cannot be personally served within the State)shall come into the State and submit to an examination before trial as required by an order which ha-s been duly served upon his attorneys. Upon the argument plaintiff’s counsel opposed the motion partly by contending that the order for his examination was not justified by the moving papers therefor. In order to expedite a settlement of the question, it was thereupon agreed by counsel, with consent of the court, that the validity of the order for examination should be determined upon this motion, a-s if a cross motion had been made to vacate it. In my opinion the papers are sufficient to support the order. It thus ' remains to be decided whether a plaintiff in an action) of libel against a citizen of the 'State can by keeping out of the S-tate avoid a duty which a citizen residing here would have to fulfill under like circumstances. It seems to me that- prima facie,, if within a moderate distance, he must be required to obey the order when made known to him by service upon his attorneys, and that a notice for a stay of proceedings is a proper remedy for enforcement of the duty. In the absence of any affidavit showing the contrary, he must be required to come from B-rattleboro for examination before he is permitted to try his case. Stay until thirty days after he shall have presented himself here for examination granted.
Motion granted.