Witcher v. Jones — 15 Daly (N.Y.) 243

Majority

p. 243

Vincent A. Witcher, Respondent, against George Jones, as Treasurer of The New York Times, Appellant.

(Decided May 9th, 1889.)

Headnote

An order for the examination of a non-resident plaintiff may be made, but must be served upon the party within the state; and where it appears at the time the order is returnable, that the party has not come and is not expected to come within the jurisdiction before trial, it is discretionary with the court to vacate the order without prejudice.

Appeal from an order of this court vacating an order for the examination before trial of plaintiff in the action.

The action was brought against defendant as treasurer of the joint stock association publishing a newspaper, for damages

p. 244

for the publication in such newspaper of an alleged libel concerning plaintiff. An order for the examination of plaintiff before trial was made, but was not served on him; and on motion of his attorneys, made on affidavits showing that plaintiff was a resident of the state of Virginia, and that he had not been and was not expected within the state of New York before the trial, an order was made vacating the order for his examination, with leave to defendant to apply again for such examination on proof that plaintiff had come within the state. From this order defendant appealed.

Townsend, Dyett, & Einstein, for appellant.

Maltby, Bayne, & Marshall, for respondent.

[Present, Larremore, Ch. J., Dalv and Bookstaver, JJ.]—In our opinion, this order was properly granted. There seems to be no reason why an order for the examination of a plaintiff who is a non-resident of the state shouldnot be made, but the order must be served upon the party within the state in order to make it effectual; and if it appears at the time that the order is returnable that the party has not come and is not expected to come within the jurisdiction, it is discretionary for the court to vacate the order,without prejudice to an application for a further order when he is found or expected to arrive within the jurisdiction. So that the Chief Justice in granting the order was entirely regular, and so was Judge Allen in revoking it. We think that the decision was in accordance with the authorities.

It may be that where an order has never been revoked by the court which granted it (as in the Dudley case), and is outstanding, it must be observed by the court and the parties in all proceedings dependent upon it. But in this case the court upon an application for the purpose revoked the order, and properly, because the plaintiff was not within the state from the' time it was granted until the return day, and is not expected before trial. We think that the Special Term had the power, and under the circumstances, we think it was

p. 245

rightly exercised. A new order will be granted whenever the party is expected within the state.

The order appealed from is affirmed, with ten dollars costs and disbursements.

Order affirmed, with costs.