184 A.D. 62 | N.Y. App. Div. | 1918
This action was brought to recover commissions aggregating $3,750 alleged to have been expressly agreed to be paid to plaintiff by defendant for procuring a buyer ready, willing and able to purchase 15,000 tons of coal from it at specified prices. The plaintiff alleges that the contract of employment
Such an order which has not been personally served can be enforced only by staying the proceedings of the foreign corporation, and this court in Wolf v. Union Waxed & Parchment Paper Co. (148 App. Div. 625); Wallace v. Bacon (143 id. 214), and Kram v. Jewish World Publishing Co. (176 id. 841) stated the consideration by which the court should be governed in deciding whether such an order, or an order for inspection of books, should be vacated or permitted to stand and the proceedings of the party required to be examined or with respect to whose books an inspection is ordered so stayed; and it is not necessary to restate them. In the case at bar it is perfectly plain that the order was obtained as a substitute for the procedure required by the Code of Civil Procedure for obtaining testimony and evidence without the State; and it is equally clear that the Legislature did not intend that an order for examination before trial might be used to require a foreign corporation defendant in an action, having no officer or office or place of business here, at its own expense to bring its officers or employees and its records here for examination instead of procuring the testimony and evidence by commission. There was and could have been no expectation that personal service of the order could be made within this jurisdiction. The defendant was not in default when it made the motion.
The orders should, therefore, be reversed, with ten dollars costs and disbursements on each appeal, and the motion to vacate the order for the examination of the defendant granted, with ten dollars costs, and plaintiff’s motion for a stay of defendant’s proceedings denied, with ten dollars costs.
Dowling, Smith, Page and Merrell, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and motion to vacate the order for examination of defendant granted, with ten dollars costs, and plaintiff’s motion for a stay of defendant’s proceedings denied, with ten dollars costs.