Freiberg v. Branigan — 3 Abb. N. Cas. 121

Majority

p. 121

FREIBERG v. BRANIGAN.

N. Y. Supreme Court, First Department; Chambers,

December, 1877.

Headnote

Examination before Trial.—Service of Papers.—Witness Fees for Party.

An order for the examination of a party before trial cannot be enforced by proceedings for contempt, without proof of personal service of an order or subpoena on the party, and payment or tender of fees.^[1]

p. 122

Motion for attachment.

Plaintiff in this action obtained an order under section 870-872, of the Code of Civil Procedure, requiring defendant to appear and submit to examination as a witness, before trial. The papers were only served on defendant’s attorney. The defendant not appearing, the plaintiff moved for an attachment to punish as for contempt. •

In Wood v. Keal, during the same month, the same ruling was reiterated. The circumstances were similar.

John McGinn, for the motion.

C. H. Branigan, opposed.

Davies, Work, McNamee & Hilton, for the motion,

J. B. Lockwood, (Lockwood & Post, attorneys), opposed.

No order, summons or subpoena has been served on defendant, and no fees have been paid or tendered. The plaintiff desires to examine her as a witness. I think he cannot put her in contempt until he first served her with the order, or a subpoena or summons, and pays or tenders fees.

Motion for attachment denied, but without costs.

I understand it to be conceded on the argument that the witness fees had not been paid, either to the attorney on whom the order was served or to the defendants whom it is proposed to examine. Since this motion was submitted, the presiding justice has held that a party cannot be put in contempt for not appearing as a witness until the witness fees have been paid or tendered (Freiberg v. Branigan, December 12, 1877, per Davis, P. J.).

Motion to punish defendants for contempt is therefore denied, without costs.