Hyperlawhypertext legal database Gaynor v. New York Breweries Co. 138 N.Y.S. 899

← Cases

Gaynor v. New York Breweries Co.

138 N.Y.S. 899 Court N.Y. App. Div. Decision date 1912-12-20 English

Contents

Majority

p. 899
GAYNOR v. NEW YORK BREWERIES CO., Limited.
(Supreme Court, Appellate Division, First Department.
December 20, 1912.)

Headnote

Witnesses (§ 16*)—Supplementary Proceedings—Subpcena Duces Tecum. A subpcena duces tecum issued in supplementary proceedings, which was not issued by and under the hand of the judge, as required by Code Civ. Proe. § 854, was a nullity.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 19-27; Dec. Dig. § 16.*]
♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Appeal from Special Term, New York County.
Action by Mary Gaynor, as administratrix of the estate of Thomas Fleming, deceased, against the New York Breweries Company, Limited. From an order denying defendant’s motion to set aside the service of a subpcena duces tecum, directing a third person in supplementary proceedings to produce certain books, defendant appeals. Reversed, and motion granted.
See, also, 135 N. Y. Supp. 1113 .
Argued before INGRAHAM, P. J„ and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
Irwin Untermyer, of New York City, for appellant.
John H. Jackson, of New York City, for respondent.

The point raised on this appeal does not appear to have been called to the attention of the court at Special Term. The subpoena which the defendant moved to vacate was not issued by and under the hand of the judge, as-required by section 854 of the Code of Civil Procedure, and was therefore a nullity. Lowther v. Lowther, 115 App. Div. 307 , 100 N. Y. Supp. 965 .

The order is reversed, with $10 costs and disbursements, and the motion is granted, with $10 costs.

Cases cited