Hyperlawhypertext legal database Balestier v. Tribune Ass'n 125 N.Y.S. 845

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Balestier v. Tribune Ass'n

125 N.Y.S. 845 Court N.Y. Sup. Ct. English

Delivered by WHITNEY, J.

Contents

Majority

p. 845
(69 Misc. Rep. 72.)
BALESTIER v. TRIBUNE ASS’N.
(Supreme Court, Special Term, New York County.
September, 1910.)

Headnote

1. Discovery (§ 47[1] )—Examination of Party Before Trial.
A resident of Vermont, suing a citizen of New York in the state, will be required to obey an order for his examination before trial, on service of notice on his attorneys, before being permitted to try the case.
[Ed. Note'.—For other cases, see Discovery, Cent. Dig. § 61; Dec. Dig. § 47.*]
2. Discovery (§ 77*)—Examination of Party Before Trial—Stay of Pro-
ceedings.
"Where a resident of Vermont brings an action against a citizen of New York in the state, a stay of proceedings is a proper remedy for the enforcement of plaintiff’s duty to obey an order for examination before trial. [Ed. Note.—For other cases, see Discovery, Dec. Dig. § 77.*]
Action by Beatty S. Balestier against the Tribune Association. Motion for stay of proceedings granted.
Francis J. McLoughlin, for plaintiff.
Henry W. Sackett, for defendant.

This is a motion by defendant for a stay of proceedings until plaintiff (who is a resident of Brattleboro, Vt., and cannot be personally served within the state) shall come into the state and submit to an examination before trial, as required by an order which’ has been duly served upon his attorneys. Upon the argument, plaintiff’s counsel opposed the motion, partly by contending that the order for his examination was not justified by the moving papers therefor. In order to expedite a settlement of the question, it was thereupon agreed by, counsel, with consent of the court, that the validity of the

p. 846
order for examination should be determined upon this motion, as if a cross-motion had been made to vacate it.

In my opinion the papers are sufficient to support the order. It thus remains to be decided whether a plaintiff, in an action of libel against a citizen of the state, can by keeping out of the state avoid a duty which a citizen residing here would have to fulfill under like circumstances. It seems to me that prima facie, if within a moderate distance, he must be required to obey the order, when made known to him by service upon his attorneys, and that a notice for a stay of proceedings is a proper remedy for enforcement of the duty. In the absence of any affidavit showing the contrary, he must be required to come from Brattleboro for examination before he is permitted to try his case.

Stay until 30 days after he shall have presented himself here for examination granted.

Motion granted. .