Hyperlawhypertext legal database Bradley & Currier Co. v. Harrison 51 N.Y.S. 304

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Bradley & Currier Co. v. Harrison

51 N.Y.S. 304 Court N.Y. City Ct. Decision date 1898-03-28 English

Delivered by FITZSIMOHS, C. J.

Contents

Majority

p. 304
BRADLEY & CURRIER CO., Limited, v. HARRISON et al.
(23 Misc. Rep. 241.)
(City Court of New York, General Term.
March 28, 1898.)

Headnote

Failure to Tender Witness Fees.
Failure to pay or tender witness fees, under Code Civ. Proc. § 874, at the time of serving upon a witness an order requiring him to attend and be examined under section 873, renders the service of the order void, and entitles him, upon its return day, to move for its vacation for that reason; and refusal to grant such a motion constitutes error.
Appeal from special term.
Action by the Bradley & Currier Company, Limited, against Arthur .B. Harrison and others. From an order requiring defendant Harrison to submit to an'examination, defendants appeal.
Reversed.
Argued before HTZSIMONS, C. J., and O’DWYER, J.
Donald McLean, for appellants.
Otis & Presinger, for respondent.

The plaintiff procured an order for the examination of the defendant Harrison, as an adverse party, under section 873 of the Code of Civil Procedure. The order was served upon him, but no fees were paid him. Upon the return day of said order he appeared by attorney, making the preliminary objection that “Harrison had not been paid or tendered the fees prescribed by section 874 of the •Code,” which objection was overruled by the special term justice, and an order was made requiring him to submit to an examination. The order appealed from must be reversed. Unless waived by Harrison, it was the duty of the plaintiff to have paid him, upon the service of the order for his examination, the fees required to be paid in such instances, prescribed in section 874. Its failure to do so rendered the service of said order void, and entitled him, upon its return day, to move for its vacation for that reason. The refusal to grant his motion to that effect, we think, was error, and entitles him to a reversal of the order appealed from, and also the dismissal of the order for his examination. In view of this ruling, it is not necessary to consider the questions presented by appellants’ counsel.

Order appealed from reversed, with costs.

O’DWYER, J., concurs.