Hall v. Gilman

| N.Y. App. Div. | Jul 1, 1903

Patterson, J.:

The defendant, having procured an order for the examination of the plaintiff before trial, made diligent efforts to serve it upon her personally, but was unable to do so; whereupon she made a motion to compel the plaintiff’s attorneys to accept service of the order and to require the plaintiff to attend for examination after such service. That motion was denied, the court at Special Term indicating in a memorandum that it had no jurisdiction to grant such an order. On the denial of the motion an order was entered stating in general terms “ that the said motion be, and the same hereby is denied.” Thereupon the defendants’ attorney moved to resettle the last-named order by having inserted therein a statement that the motion for substituted service was denied' for want of power.

The appeal from the last-mentioned order must be dismissed. We cannot compel the court below to decide a motion on any particular ground, especially after the attention of the justice deciding the motion has been called to the subject and he has declined to base his decision on that particular ground.

The first order appealed from was properly made. There is no provision of the statute which authorizes substituted service of an order for the examination of a party to an action. The sections of the Code of Civil Procedure which refer to the subject sufficiently indicate that the service of such an order must be made personally upon the party to the action and within the State. Section 870 provides that the deposition of a party to an action pending in a court of record, etc., may be taken at any time before the trial, as prescribed in article 1 of title 3 of chapter 9 of that Code. Section 872 defines the requirements necessary to an application for such examination. Section 874 provides that witness fees at the rate prescribed by law in an action in the Supreme Court must be paid or tendered when the order is served upon the pa/rty or other person required to attend, and if the party or person so served fails to obey the order, his' attendance may be compelled and he may be punished in like manner as if he failed to obey a subpoena issued from the court in which the action is pending. Disobedience of the order involves a punishment for contempt, and section 874 plainly prescribes that contempt proceedings may be instituted only as against a party personally served; with the order. Section 875 provides that a copy of the order and of the aifidavit upon which it was granted must be served upon the attorney for. each party to the action, in like manner as a paper in the action — that provision only relating to due notification to the attorney of the party. The proceedings to punish for contempt are the same as those that would be taken for the failure of a person to obey a subpoena, and the first requirement would be in such case that the subpoena be^ served upon the party sought to be put in contempt.

The order denying the motion for substituted service must be affirmed, with ten dollars costs and disbursements. The appeal from the order denying the motion to resettle the first order appealed from should be dismissed, with ten dollars costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Order denying motion for substituted service affirmed, with- ten dollars costs and disbursements. Appeal from order denying motion to resettle first order appealed from dismissed, with ten dollars costs.