Cowen v. Ferguson

Headnote

1. Service of order for examination of witness before trial.] An order for the examination of a witness before trial under section 871 of ttaf Code of Civil Procedure, should be served upon the attorney for tin adverse party as well as upon the witness.

% Order for examination vacated, when.] Where the order for examina tion was served only upon the witness, it will be vacated on motion, even after an order, punishing the witness for contempt in not ap pearing, has been made.

Motion to vacate an order for the examination of a wit ness before trial. ' i

After appearance and answer by the defendant, the plain, tiff procured an order for the examination of one. Noble as a witness before trial, upon the usual affidavit, alleging that Noble was a purchaser of the property in question in the suit. The order was made returnable before a referee at the city of New York. Noble resided in New Jersey, but had a place of business in the city of New York. The venue of the action was in Saratoga county.

The order was not served upon the attorney for the defendant, but was served upon the witness, and his witness fee paid him.

The plaintiff appeared before Mre referee on the return day at the hour appointed, but the witness did not appear. No proof of service of the order was presented, but the referee called the witness, and certified to his non-appearance.

Thereupon plaintiff obtained from a judge at special term in the first district an order requiring the witness to show cause at that Special Term why he should not be punished for contempt in not appearing before the referee for examination. On the return of that order, the witness proved the above facts, but an order was made imposing a fine of $18 upon the witness.

This motion was now made by the defendant and the wit

ness, at the Saratoga Special Term, to set aside the original order for the witness’ examination, npon the ground that the order was not served npon the defendant’s attorney.

I. The plaintiff had no right to examine witness under ' such order, without first serving it upon the defendant’s attorney, as required by Code Civ. Pro., § 875.

II. The referee had no power to proceed, or do any act under the order until proof of service was presented to him, as required by Code Civ. Pro., §876.

III. The attempt to coerce the witness to be sworn under such circumstances was a fraudulent use of the process of the court.

IV. It was an evident attempt to obtain some admission that might be used against the witness in a future suit against him, as it could not. be used as evidence in this case.

Service of the order to examine the witness upon the defendant’s attorney was not required. Furthermore, the order punishing for contempt is an adjudication that plaintiff’s practice was regular.