Brokaw v. Culver — 23 Abb. N. Cas. 224

Majority

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BROKAW v. CULVER.

New York Supreme Court, First District, Chambers ;

July, 1889.

Headnote

Service; order for examination before trial.] The omission to personally serve an order for the examination before trial of a defendant, for the purpose of enabling the plaintiff to frame his pleading, is not a ground for setting aside the order. Obedience to the order, however, cannot be enforced without personal service thereof.

Motion to vacate order for examination of defendants before trial.

This action was brought by Isaac V. Brokaw against Delos E. Culver, Ann L. Culver and Benjamin B. Kirkland, to recover damages for the alleged fraud of the defendants in inducing the plaintiff to purchase alleged worthless securities.

The plaintiff obtained an order for the examination of the defendants, for the purpose of enabling the plaintiff to frame his complaint. The defendant Delos E. Culver was not personally served witli the copy of the order. The motion to vacate the order as to him was made upon that

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ground, and as to the other defendants on the ground of lack of necessity and materiality of the examination.

Philip Carpenter, for the plaintiff.

Clarke & Culver, for the defendants Delos E. Culver and Benjamin B. Kirkland.

Appleton L. Clark, for the defendant Ann L. Culver.

As to the defendant Delos E. Culver, no copy of the order and the papers upon which the same was granted having been served upon him, if he should not appear, his attendance cannot be compelled. In this connection, I am inclined to the view expressed in Riddle v. Cram ( 3 Abb. N. C., 117 , n.), that service upon the attorney alone furnishes the court with no authority to compel the defendant’s attendance by attachment, or to punish him for his non-attendance. No necessity exists for setting aside the order therefore as to Culver. If he should appear, his examination can be taken. If he should neglect or refuse to appear, an order for his examination must be served personally upon him.

As to the other defendants, I am of opinion that the papers disclosed sufficient grounds to warrant an examination, which, however, in view of the character of the alleged cause of action, should be restricted to such matters as are material and necessary. - The motion to vacate the order as to defendants Kirkland and Ann L. Culver is denied. The examination to be limited to the following inquiries, namely : to showing whether or not

the plaintiffs were original subscribers to the securities, or whether the same at that time were the property of the defendants. . Second : The facts as to the contracts between the construction company and the railway company, and the relation of the defendants thereto. Third: As to whether

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the money paid by plaintiffs for the bonds were applied to the construction of the road or were retained by them. Ordered accordingly.