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Pake v. Proal

2 Abb. N. Cas. 418 Court N. Y. Superior Court; Special Term, English

Delivered by Freedmau, J.

Contents

Majority

p. 418
PAKE v. PROAL.
N. Y. Superior Court; Special Term,
October, 1877.

Headnote

Examination before Trial.
Under the Code of Civil Procedure, a subpoena is not necessary to accompany an order for the examination of a party before trial.[1]
Motion to vacate order for examination of a party before trial, for want of the issue of a summons or subpoena therewith.
George E. King, for the plaintiff and motion.
G. W. Dillawag, for defendant, opposed.

Section 874 as originally enacted as part of the Code of Remedial Justice, provided that upon the application of the person desiring to take deposition, the judge must also issue a subpoena, directed to the person to be examined, requiring him to attend at the time and place specified in the order granted» under section 873. It further provided, that if the person so subpoenaed fails to obey the subpoena, his attendance may be compelled and he may be punished in like manner, and the proceedings thereon are the same, as if he failed to obey a subpoena issued from the court in which the action is pending, &c. The legislature of 1877 amended the section by striking from it the requirement of a subpoena, and by directing that if the party or person sérved with the order fails to obey the same, his attendance may be compelled and he may be punished, in like manner as if he failed to •obey a subpoena issued from the court.*

p. 419
The mode of the service of the order is prescribed by section 875. If a party has appeared in the action, the service of a copy of the order and of the affidavit upon which it was granted upon his attorney, in like manner as a paper in the action, is sufficient. If a party has not appeared in the action, the papers must be served upon him, as directed by the order. If no action is pending, they must be personally served upon each of the persons named therein as expected adverse parties. The summons resorted to under the old Code for the purpose of bringing a party into court for examination having been superseded by the subpoena substituted by the Code of Remedial Justice, and the requirement of a subpoena having in turn been abrogated, nothing more is now necessary than service as prescribed by section 875. The motion to dismiss the proceedings for want of a summons must be denied, and the defendant required to appear for examination.