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Ely v. Perkins

127 A.D. 823 Court Fourth Department, Decision date 1908-07-07 English

Delivered by Williams, J.:

Contents

Majority

p. 823
W. Caryl Ely, Appellant, v. Erickson Perkins and Others, Comprising the Copartnership of Spader & Perkins, Respondents.
Fourth Department,
July 7,1908.

Headnote

Deposition — examination to frame complaint — privilege of witness — service.
An order for the examination of a defendant for the purpose of enabling the plaintiff to frame his complaint will not be vacated on the ground that the defendant would not be obliged to testify as to matters on which the examination is sought, inasmuch as his answers might tend to criminate him, for he might not assert the privilege and the answers to some questions might not be privileged.
Service by mail of such order and affidavits pursuant to an order and in compliance with section 875 of the'Code of Civil Procedure upon a non-resident defendant who had not been served with a summons is good service.
Appeal by the plaintiff, W. Caryl Ely, from an order of the Supreme Court, made at the Erie Special Term and entered ih the office of the clerk of the county of Erie on. the 24th day of January, 1908, vacating a prior order requiring the defendant Clarence W. Cady to appear before a referee for examination for the purpose of enabling the plaintiff to frame his complaint.
Daniel J. Kenefick and Edward H. Letchworth, for the appellant.
Joseph G. Dudley, for the respondents.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

The specific ground upon which the order was vacated was that the party sought to be examined would not be obliged to testify with reference to matters about which plaintiff desired to examine him; that there was a privilege inasmuch as his answers might tend to criminate him.

We think this was not a sufficient reason for making the order appealed from. The privilege may not be insisted np.on when the party is called to answer, and as to some or all of the matters, his answers might not tend to criminate him at all. The better time to raise the question of privilege is when the examination is had. (Ryan v. Reagan, 46 App. Div. 590 ; Matter of Sayre, 70 id. 329.)

p. 824
But the respondent claims the order for the examination was properly vacated.for the reason that there was no proper service of the order and affidavits. Upon one of the defendants, Beaty. All the other defendants had appeared in the action and were properly served. Beaty resided in Canada, and had not been served with summons.

The order for examination directed the service of the order and affidavits to be made upon him by mail, and that such service should .be sufficient to comply with section 875 of the Code of Civil Procedure, and service was só made.

The respondent claims that such service was insufficient, and no service upon Beaty could be made so as to comply with the Code so ■long as Beaty was a non-resident and had not been served "with a summons in the action. The section of the Code (875) provides that if a party has not appeared-in the action the service shall be made upon him as directed by the order. ' I think the order and compliance with its terms were a sufficient service in this kind of a' proceeding.

The case was here on appeal from a former order, reported 121 Appellate Division, 893. ^ This question was not then passed upon. There had then been no attempted service upon Beaty; no order directing the manner of such service:

All concurred:

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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