| N.Y. App. Div. | Jun 15, 1899
This action is brought to recover damages for personal injuries sustained by the falling of an elevator which was being operated in the store of the defendant, the claim being that the elevator was so negligently operated by the defendant that injury resulted to the plaintiff. The papers upon which the order for the examination was obtained show that the injuries claimed to have been sustained by
The formal parts of the moving papers upon which the orders for examination were granted, in form were a sufficient compliance with the statute. Upon the merits it was stated that the defendant was ignorant of the nature and extent of the injuries of which complaint was made; that request had been made of the plaintiff for a physical examination of her person by a physician; that the same had been denied, and after diligent investigation the defendant was unable to obtain any definite information as to the nature and extent of the injuries sustained. The first order was not served. It was granted December 28, 1898. Delay in obtaining the second order was had until the 6th day of February, 1899. The last order was served upon the plaintiff’s attorney, and without the State upon the plaintiff, as she had become a non-resident. The plaintiff failed to obey this order, or to appear before the referee therein, and thereafter this motion was made to set aside both orders.
Neither the order to show cause nor the order vacating the former orders shows the grounds upon which the same was made or granted. The plaintiff, however, contends upon this appeal that the orders were properly vacated for loches in delaying application for the last order; that the plaintiff was a non-resident, and, therefore, the order could not be served within the State, as required by the Code; that no witness fees were paid when the order was in fact served, and that the papers upon which the orders were granted are fatally defective. So far as loches is concerned, the papers disclose much difficulty in discovering the whereabouts of the plaintiff, whose place of residence was unknown to the defendant. In addition thereto, the attorney for the defendant was in the military service of the United States from September 5 to December 7, 1898, and was seriously ill after his retirement therefrom. We think, therefore, that there was no loches which should operate to defeat the orders. The Code of Civil Procedure (§ 873) requires the court to grant an
So far as the failure to pay to the party the witness fees, required by section 874 of the Code of Civil Procedure, is concerned, it cannot be made the basis for vacating the orders, for, until the party submits her person to the jurisdiction of the court, there is no obligation to pay any fees. Undoubtedly, the defendant will be required so to pay when it makes service within the State, but, until the party furnishes the defendant with such opportunity, it cannot exact what the defendant is not bound to do, or vacate its order because the plaintiff will' not allow the defendant to comply with it. A different question would be presented had the plaintiff offered to appear and be examined on payment, of fees or expenses from the place where the papers were served, as it may be that, under such circumstances, the moving party should pay fees or expenses before exacting attendance of the party. The affidavit upon which the order was granted makes out a case within the Code. It is quite evident from the circumstances which it details that the examination is sought for the sole purpose of inquiry concerning the nature and extent of plaintiff’s injuries, and for a physical examination of her person in connection there
It follows that the order should be reversed
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied without costs.