127 Misc. 455 | City of New York Municipal Court | 1926
These are motions to vacate notices for examination before trial of an officer of the defendant company. The motions are made on several grounds, but I shall consider only the ground worthy of attention on this motion, the others being in my opinion not well taken.
The notice is made returnable before a justice of the Supreme Court at the county courthouse in the borough of Manhattan, and this is assigned as one of the grounds for vacating such notice. The notice is given under the provisions of section 288 of the Civil Practice Act (as amd. by Laws of 1920, chap. 926), which apply
If a defendant served with notice and subpoena defaults, he then may be punished as any other person for disobeying a subpoena. But, before he may be punished for disobedience of a subpoena, it must issue by a court having jurisdiction of the action. Subpoenas are issued only in actions or special proceedings. An examination of the adverse party is a proceeding in an action. (Civ. Prac. Act, § 288.) The only court authorized to issue a subpoena in an action is the court in which the action is pending. (Civ. Prac. Act, § 403.) Certain other cases exist in which a subpoena may be issued, but these provisions do not apply to a matter arising or an act to be done in a court of record. (Civ. Prac. Act, § 406, subd. 1, particularly last sentence.) For failure to obey a subpoena, a party is punished by the court in which the action is pending. (Civ. Prac. Act, § 405.)
In this state a subpoena is not .an independent process, but is always connected with an action or special proceeding. As there is no action here pending in the Supreme Court, it is doubtful whether any power exists for a subpoena to issue from that court in this matter; but that is a matter to be decided by the Supreme Court whose subpoena it is. However, in the interest of orderly
I would feel justified in holding that the term “ any judicial officer,” as mentioned in section 301 of the Civil Practice Act, should be read to mean any judicial officer of the court in which the action is pending, provided the place of examination is within the jurisdictional limits of that court; but, under the rule which has been just referred to, that will be unnecessary, as I shall modify the notice for the reasons stated and make the place of the examination part I of this court and the person before whom the deposition is to be taken the justice of this court presiding in said part. The date of examination may be fixed on settlement of orders on these motions, which orders shall be settled on three days’ notice.