Island Supply Co. v. Steitz — 127 Misc. 598

Majority

p. 598

Island Supply Co., Inc., Plaintiff, Sylvania Insurance Company, Respondent, v. William W. Steitz, Doing Business as Florentine Garage, Appellant.

Supreme Court, Appellate Term, First Department,

June 16, 1926.

Headnote

Depositions — examination of plaintiff, foreign corporation, before trial — defendant properly applied for stay on failure of plaintiff to submit to examination — party seeking examination of foreign corporation only relegated to commission when examination would be hardship.

The defendant, who had properly served a notice for an examination before trial upon plaintiff, a foreign corporation, is entitled to a stay until said corporation submits to the examination. It is only when serious hardship would result to a foreign corporation, and its officers are required to travel a great distance to attend upon the examination, that the party applying therefor is relegated to an application for a commission.

Appeal, by permission, by defendant from an order of the Municipal Court, Borough of Manhattan, Third District, in favor of the plaintiff.

Louis Ehrenberg [.Benjamin Machinist of counsel], for the appellant.

John P. Booth, for the respondent.

The proper practice on plaintiff’s failure to submit to an examination after notice to that effect was properly-served is for the defendant to apply for a stay until it does so submit. (Graziano v. Eagle Pencil Co., 207 App. Div. 225 ; Meinig Co. v. U. S. Fastener Co., 194 id. 397.) The rule is well established that where a foreign corporation invokes the aid of the courts of this jurisdiction it will be required to submit to examination in this State on the penalty of being stayed until it does. It is only where serious hardship would result to such a corporation and its officers be required to travel a great distance that the defendant will be relegated to the remedy of applying for a commission. (Meinig Co. v. U. S. Fastener Co., supra.)

Plaintiff must assume the burden as well as enjoy the benefits for the privilege of suing in this State.

The order is reversed, with ten dollars costs, and the motion for a stay granted, with ten dollars costs.

All concur; present, Delehanty, Lydon and Levy, JJ.