Langerman v. McAdam — 29 Abb. N. Cas. 424

Majority

p. 424

LANGERMAN v. McADAM.

N. Y. Common Pleas, Special Term ;

January, 1893.

Headnote

1. Depositions; examination of parties before trial,} Disobedience of an order to submit to examination to enable plaintiff to frame a complaint, is not to be excused by objecting .that the order was improvidently granted, and was obtained for improper purposes ; such objection 09m not be considered in opposition to a motion to punish for contempt, but only upon motion to set aside the order for examination, orto limit its scope.

2. The samel} A party who has reqeived witness fees upon the service of an order for his examination before trial to enable his adversary to frame his pleading, is not entitled to an additional fee to secure his attendance upon an adjourned day of the examination.

Motion to punish defendant for contempt for disobeying an order for his examination before trial, to enable

p. 425

plaintiff to frame his complaint, in not appearing before the referee upon an adjourned day for the continuation of his examination ; and also for disobedience to a summons of the referee to appear before him to be examined, and to produce books and papers.

The action was brought by Walter L. S. Langerman against George H. McAdam and Graham McAdam for an accounting under a contract by which defendants agreed to share with plaintiff their fees and profits as attorneys, arising from business brought to them by plaintiff. An order was procured for the examination of George H. McAdam before trial, to enable plaintiff to frame his complaint ; and it is for the disobedience to such order that this motion is made.

In opposition to the motion to punish for contempt, defendant objected, among other things, that the order for examination had been improvidently .granted, and that its real object was .not to enable plaintiff to frame a complaint, but to go fishing to find some cause of action against defendants by confession ; and that, therefore, the order of examination should be strictly construed in defendant’s favor. Defendant also contended, that witness fees had not been paid him in order to secure his attendance upon the adjourned day of the examination, and that he was not obliged to attend until they had been paid.

J. P. Berg, for the motion.

George A. Sterns, opposed.

Defendant’s objection to the consideration of the stenographer’s minutes of the proceedings before the referee is sustained. The objections to the order requiring defendant to submit to examination may be urged on a motion to set that order aside, or to terrain-

p. 426

ate or limit the scope of the examination, but they cannot be entertained on a motion to punish defendant for disobedience to the order, and the objections are therefore overruled.

The referee had power to adjourn the examination from time to time (Code Civ. Pro. § 876), and the only witness fees to which defendant was entitled were those required to be paid-on service of the order for his examination upon him (Code Civ. Pro. §. 874).

Defendant is permitted to purge himself of his alleged contempt by submitting to further examination before the referee at a time to be fixed in the order to be entered hereon ; and this motion to punish him for alleged contempt is suspended until the examination is concluded, then again to be brought to'a hearing upon three days’ notice. The pendency of the examination and of this motion shall, however, be without prejudice to defendant’s right to make such motion respecting the order for his examination as he may be advised.