Tur v. Arrue — 156 A.D. 547

Majority

p. 547

Jose Tur and Ildefonso Llama, Copartners Doing Business under the Firm Name of Tur, Llama S en C, Respondents, v. Miguel S. Arrue, Appellant.

First Department,

May 2, 1913.

Headnote

Process — service of order for examination before trial — time of service upon attorney.

If an order for the examination of a party before trial together with the affidavit upon which it was granted, have been served upon the party within the time directed, the order of examination should not be vacated merely because the service of said papers was not made upon • the party’s attorney until a later date. The service on the attorney may be made within a reasonable time before the examination, and four days is such reasonable time.

p. 548

■ Appeal by the defendant, Miguel S. Arrue, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York on the 20th day of March, 1913, as resettled, granting a motion to vacate an order for the examination of one of the plaintiffs .before trial.

Louis O. Van Doren [G. Murray, Hulbert of counsel], for the appellant.

Ralph James M. Bullowa, for the respondents.

On March 8, 1913, an order was duly made for the examination before trial of the plaintiff, Jose Tur, on March 14, 1913, and a subpoena duces tecum was issued directing him to produce at the same time certain books and papers that he might make use of - the same to refresh his recollection upon his examination. By the order it was provided that service of a copy thereof and of the affidavit upon which it was granted should be made upon Tur within the State on March eighth. That direction was duly complied with. A copy of the order and of the accompanying affidavit was not served upon Tur’s attorney until the following Monday (March tenth), and the order for examination, has been vacated because of the failure to make such service on the attorney on the same day as that on which service was directed to be made upon the client. We think this was error.' Section 813 of the Code of Civil Procedure refers to service upon the party to be examined and prescribes the time within which the same shall be made, but contains no reference to service upon the attorney. Section 815 requires that “ a copy of the order, and of the affidavit upon Which it was granted, must be served upon the attorney for each party to the action, in like manner as a paper in the action.” This does not refer to the time of service, but to the method thereof. Where, therefore, the order requires service to be made upon the party to be examined, and the time when service to be so made is therein specified and complies with the provisions of the Code in that respect, the service upon the attorney for the party is not required to be made

p. 549

within the time limited by the order, but may be made within a reasonable time before the examination. We deem four days such a time.

The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the order of examination denied, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order to be settled on notice.