p. 70DUNHAM v. THE MERCANTILE MUTUAL INS. CO.General Term, November, 1878.Headnote
Examination of Party before Trial.—Service upon Attorney. —Code of Civ. Pro., §§ 873, 886.To obtain the examination of a non-resident party before trial, the affidavit upon which the order is based must comply with the requirements of sections 873 and 886 of the Code of Civil Procedure.
Appeal by plaintiff from an order for his examination before trial.
The plaintiff was a non-resident of this State, and gave security for costs. While he was absent in Canada an order was obtained by defendant for his examination before trial, and was served upon his attorney here. No service was made upon him personally, and he had no notice of the proceeding.
Further facts sufficiently appear in the opinion.
W. G. PecTcham, Jr., for appellant.
A commission was, on the papers, the only proper way to get this plaintiff’s testimony under the new code ; it came not under the class “Deposition within the State,” but clearly under section 887, ‘ ‘ Depositions without the State.” The court can form no opinion as to whether the party resided here, or in Yokahama, unless his residence be given. The whole matter should fall on the jurisdictional defects of the non-statement of the
p. 71residences of plaintiff and his attorney, and of the non-statement as to the name of the attorney appearing for plaintiff in this cause, which left the court powerless to judge whether the attorney served had authority to represent the plaintiff (Beach v. Mayor, 4 Abb. New Cas. 236; Levy v. Loeb, Gen. Term Superior Court, May, 1878, 5 Abb. New Cas. 157).
Seudder & Carter, for respondent.
It is stated in the affidavit, that plaintiff’s residence is unknown. Service on the- attorney alone is sufficient (Pake v. Proal, 54 How. Pr. 93 ). Payment of a witness fee has only been held necessary to put the party in contempt (Freiberg v. Branigan, 3 Abb. New Cas. 122). A party who voluntarily brings suit and puts himself under the jurisdiction of the court, can claim no exemption from its rules, and wherever he is he should be punished for not complying with its orders, by having his pleading stricken out, as the code provides (§ 853).The affidavit upon which the defendant applies for the examination of the plaintiff fails to comply with the requirements of sections 872 and 886 of the new Code of Civil Procedure. It omits any statements of the residence of the plaintiff, or that any inquiry has been made to ascertain it, or that there is any difficulty in learning it. It omits to state, whether the plaintiff has appeared by attorney, nor does the name, residence, or office address of any attorney on plaintiff’s behalf appear in defendant’s affidavit. There is no proof of any notice to the plaintiff of this order for his examination, or that any order, affidavit or subpoena has been served upon him in respect to it. To sustain the order under such circumstances might subject non-resident parties to great hardships. It appears from the defendant’s affidavit that the plaintiff resides in another State, and if so, he is entitled to the protection given him as a non-resident of this State by section 886.
p. 72The order appealed from should be reversed with costs.
Sedgwick and Fbeedmah, JJ., concurred.