Majority
p. 230SUPREME COURT. James W. Todd agt. Edward Lambden. New York Special Term, Nov. 1870.
Headnote
A party to an action may be compelled to- attend for Ms examination before a judge, as a witness, under section 391 of the Code, in whatever county he is served with a summons and notice to attend for such examination, although he be a resident of another county. (It seems that this section of the Code should be amended in this respect, as it may operate oppressively and prejudicially to the party to be examined in many cases.)The defendant, a resident of New Rochelle, 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 S. 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 his county,
p. 231
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 his 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 the 28th of November, at 10, to be examined. Notice to be given him by the plaintiff’s attorney, on or before the 27th November.