Witcher v. Jones

| New York Court of Common Pleas | May 9, 1889

Per Curiam.

In our opinion, this order was properly granted. There seems to be no reason why an order for the examination of a plaintiff who is a non-resident of the state should not be made, but the order must be served upon the party within the state, in order to make it effectual; and if it appears at the time that the order is returnable that the party has not come, and is not expected to come, within the jurisdiction, it is discretionary for the court to vacate the order without pnejudice to an application for a further order, when he is found or expected to arrive within the jurisdiction. So that the chief justice in granting the order was entirely regular, and so was Judge Allen in revoking it. We think that the decision was in accordance with the authorities. It may be that where an order has never been revoked by the court which granted it, (as in the Dudly Case,¹) and is outstanding, it must be observed by the court and the parties in all proceedings dependent upon it. But in this case the court, upon an application for the purpose, revokes the order; and properly, because the plaintiff was not within the state from the time it was granted until the return-day, and is not expected before trial. We think that the special term had the power, and, under the circumstances, we think it was rightly exercised. A new order will be granted whenever the party is expected within the state. The order appealed from is affirmed, with $10 costs and disbursements.

1 Not reported.