Todd v. Lambden — 10 Abb. Pr. 383

Majority

p. 383

TODD against LAMBDEN.

Supreme Court, First District;

Special Term, November, 1870.

Headnote

Examination before Trial.—Service on Non-RESIDENT.

Under section 391 of the Code of Procedure,—which allows the court to issue a summons to compel a party to be examined as a witness before trial,—the summons may require attendance in the county where it is issued and served, although the party be a non-resident, only temporarily there.

Summons for examination of party before trial.

This action was brought by James W. Todd against Edward Lambden. The defendant, a resident of New

p. 384

Rochelle, in the county of Westchester, was served in the city of New York on November 16, 1870, with an affidavit, summons and notice to attend for his examination before trial, under section 391 of the Code of Procedure, before one of the judges of the supreme court, at the court-house in the city of New York.

On the return day of the summons the defendant raised the objection that a party could not be compelled to attend for his examination in any other county than that of his. residence, and thereupon moved to vacate the summons and notice.

Charles H. Roosevelt, for the motion.

Edward B. Clinch, opposed.

Section 391 provides that a party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance. I entertain the opinion that the latter alternative was not designed to authorize the examination of a party only temporarily out of Ms county, but was intended to apply to persons who do business in some county other than that of their residence. The language of the section does not admit, however, of such a construction, and leaves no doubt of the right, in terms, to examine a party wherever he may be served with a summons. He may be called to another county, far distant from Ms . home, by some emergency, and be there served with a summons requiring him to submit to an examination in the absence of his counsel and advisers. I think such a proceeding may always operate with prejudice, and should be corrected either by legislation or rule.

The defendant must appear on November 38, at ten o’clock, to be examined. Notice to be given him by the plaintiff’s attorney on or before November 37.