283 A.D. 1076 | N.Y. App. Div. | 1954
In this action by a wife for a separation, the defendant appeared specially and moved to set aside the service of the summons and complaint upon him and to dismiss the action, pursuant to section 237-a of the Civil Practice Act, upon the ground that the service of process was insufficient and upon the further ground that he is a person not subject to the jurisdiction of the court. Upon conflicting affidavits, the court set the matter down for a hearing and directed defendant and his witnesses and plaintiff’s witnesses to appear personally thereat. Upon motion by defendant, said order was resettled to the extent of allowing his witnesses to be examined in the city of Miami Beach, Florida, by way of written interrogatories. Defendant appeals from so much of said resettled order as denied his application to have his testimony taken by way of written interrogatories and directed him to appear personally at the hearing. Order modified by striking from the first decretal paragraph the words “ to the extent only of allowing ” and adding in lieu thereof the words “ allowing the defendant and”, and by striking from said paragraph the words “otherwise said motion is denied in all other respects ”, and by striking therefrom the second decretal paragraph. As so modified, order affirmed, without costs. Upon the papers herein, we are of the opinion that, under all the circumstances, it was an improvident exercise of discretion to require defendant to appear personally at the hearing. Nolan, P. J., Adel, MaeCrate, Schmidt and Murphy, JJ., concur.
