Turk v. H. Koehler & Co., 128 N.Y.S. 809

Turk v. H. Koehler & Co.

128 N.Y.S. 809 | N.Y. App. Div. | 1911

Dowling, J. :

Plaintiff obtained an order for the examination before trial of defendant, a domestic corporation, in an action brought to recover damages claimed to be due to the carelessness, negligence and improper conduct of defendant in its maintenance of certain premises owned by it in the city of New York, the particular question to which the examination was directed *54being defendant’s ownership of the premises. The affidavit upon which the order was based did not give the name of any • officer of defendant whose examination was sought, nor did the order name such person. Section 872, subdivision 7, of the Code of Civil Procedure provides as follows: “And if the party sought to be examined is a corporation, the affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, * * and .the order to be made in respect thereto shall direct the examination of such persons. * * *.” ■ Both the affidavit and order in question failed to comply with this requirement. Furthermore, the order directed that service thereof should be made upon the attorneys for defendant, or upon E. J. Koehler, on or before a specified date. Section 875 of the Code of Civil Procedure requires that “A copy of the order, and of the affidavit 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; or, if a party has not appeared in the action, they ' must be served upon him as directed by the order.” Defendant herein having appeared, its attorney should have been served with a copy of the order.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to. vacate the order for examination granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Scott and Miller, JJ.,concurred. .

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.