Turk v. H. Koehler & Co. — 128 N.Y.S. 809

Majority

p. 809

TURK v. H. KOEHLER & CO.

(Supreme Court, Appellate Division, First Department.

April 7, 1911.)

Headnote

1. Discovery (§ 58^[1] )—Examination Before Trial—Application—Requisites.

Where neither the affidavit nor the order for the examination of a corporation before trial gave the name of any officer of defendant whose examination was sought, as required by Code Civ. Ptoe. § 872, subd. 7, it was fatally defective.

[Ed. Note.—For other cases, see Discovery, Dec. Dig. § 58.^[1] ]

2. Discovery (§ 59^[1] )—Application—Affidavit—Service.

Code Civ. Proc. § 875, authorizing an examination of an adverse party before trial, provides that a copy of the order and affidavit on which it was granted must be served on the attorney for each party to the action in like manner as a paper in the action, or, if a party has not appeared, it may be served as directed by the order. Meld, that where a defendant corporation, sought to be examined before trial, had appeared, a copy of the order for its examination should have been served on its attorney.

[Ed. Note.—For other cases, see Discovery, Dec. Dig. § 59.^[1] ]

Appeal from Special Term, New York County.

Action by Regina Turk against H. Koehler & Co. From an order denying a motion to vacate an order for examination of defendant before trial, it appeals.

Reversed, and motion to vacate granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.

Jerome Koehler, for appellant.

Mortimer W. Solomon, for respondent.

Plaintiff obtained an order for the examination before trial of defendant, a domestic corporation, in an action brought to recover damages claimed to be due to the carelessness, negligence, and improper conduct of defendant in its maintenance of certain premises owned by it in the city of New York; the particular question to which the examination was directed being defendant’s ownership of the premises. The affidavit upon which the order was based did not give the name of any officer of defendant whose examination was sought, nor did the order name such person. Section 872, subdivision 7, Code of Civil Procedure, provides as follows:

“And if the party sought to be examined is a .corporation, the affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, and the order to be made in respect thereto shall direct the examination of such persons. * * * ”

^[1] Both the affidavit and order in question failed to comply with this requirement. [2] Furthermore, the order directed that service thereof should be made upon the attorneys for defendant, or upon E. J. Koehler, on or before a specified date. Section 875, Code of Civil Procedure, requires that:

“A copy of the order, and of the affidavit upon which it was granted, must De served upon the attorney for each party to the action, in like manner as

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a paper In the action; or, if a party has not appeared in the action, they must be served upon him as directed by the order.”

Defendant herein having appeared, its attorney should have been served with a copy of the order.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion to vacate the order for examination granted, with $10 costs. All concur.