Farmers' National Bank v. Underwood — 70 N.Y. St. Rep. 491

Majority

p. 491

Farmers’ National Bank of Annapolis, Resp’t, v. William H. Underwood, Impleaded, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed November 15, 1895.)

Headnote

Deposition—Examination of party. .

Where the plaintiff fails to obey an order to submit to an examination before answer, the defendant’s time to answer will be extended until plaintiff appears or secures a vacation of the order, though such plaintiff is a nonresident, and, by permission of the court, was served with the order outside of the state.

Appeal from an order, denying a motion to strike out the complaint and dismiss the action, and requiring answer within ten days.

Appeal from order denying motion to strike out the complaint and dismiss the action. The order appealed from not only denied any relief asked by defendant, but extended relief to the plaintiff by requiring the defendant to serve his answer within ten days from the entry and service of the order appealed from. This action was commenced by thé service of a summons and complaint on the 9th day of November, 1894. The plaintiff is a resident of Annapolis, Md., where its president resides. On January 9, 1895, defendant obtained ex parte an order to examine the president of plaintiff as an adverse party, and an inspection and discovery of plaintiff’s books, which order was vacated on plaintiff’s motion. Subsequently, two other orders, requiring plaintiff to give certain information, were obtained, one of which was granted in part and in part denied, and the last one of which was vacated on plaintiff’s application. This being the situation

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of the proceedings, defendant, on-June 1, 1895, obtained an order for the examination of the president as an adverse party, directing him to appear for such examination in New York city. As this could not be served within the state, an order for service without the state was secured, and thereafter the service was made in Annapolis on the president and on the plaintiff’s attorney. By reason of certain - defects, two other orders were obtained; and finally, on June 18th," an order was secured extending the time for the taking of the deposition and examination, as provided for in the order of June 1st, until the 20th day of June, 1895,- and further providing for service of the orders, and a copy of the last order and the affidavit upon which it was granted, “ upon the attorneys of said plaintiff, and upon the president of the plaintiff, within or without.the state, on or before the 19th day of June, 1895.” This order was served, in accordance with its provisions, upon the attorney and the president, but on the return day the latter did not appear. Thereupon the defendant moved to strike out the complaint and dismiss the action and for other relief, which motion woe denied, and an order was thereupon entered which, besides denying the motion, contained this provision: “ Ordered peremptorily that the defendant serve his answer upon the plaintiff’s attorney within ten days after service of a copy of this order.” The questions presented for consideration arise upon the appeal from this last order.

Walter H. Underwood, for app’lt; Chas. De Hart Brower, for resp’t.

It is conceded that plaintiff did not move to. vacate, that he did not appear for examination, and that the order of June 1st as subsequently amended was in full force and vigor-at the time the motion was made to dismiss the complaint. Upon this appeal, however, it is insisted that such order is void, because providing for the examination of the plaintiff’s president in New-York city, while the papers show that he resided in Annapolis, and that he could not be served within the state; and this proposition is seemingly supported by .the case of Witcher v. Tribune Association, 38 St. Rep. 364 . In the opinion in that case it is said:

“If it (the order) had been made ex parte, and the plaintiff had moved for its vacation upon affidavit showing that he is a nonresident, and that service cannot be made upon him in this state, the court would have been bound to vacate it under the decision of the general term of this court in Dunham v. Insurance Co., 44 N. Y. Supr. Ct. 387 . There is no power in the court to require the plaintiff, as a resident of another state, to come to. New York from such state for the sole purpose of being examined.”

Without expressing assent in these views, we do not think such question is involved, the order for -the examination not having been assailed by motion or vacated. As long as it remains in force, it must be assumed to have been regularly, made, and the duty was -upon the plaintiff, either of moving to have it vacated or of complying with its terms.

p. 493

Although differing in its facts, the principle here involved is somewhat analogous to that in the cases of Dudley v. Press Publishing Co., 53 Hun, 357 ; 25 St. Rep. 32 , and 58 Hun, 181 ; 33 St. Rep. 781 . In the former, plaintiff moved to vacate extensions of time granted to defendant; and it appearing that efforts to serve an order for plaintiff’s examination were unsuccessful, because plaintiff had left the state, it was held that, so long as the order for the plaintiff’s examination remained in force, it must be held to have been regularly made, and that it entitled the defendant to an examination of the plaintiff as a witness under its direction, before the defendant could be compelled to serve an answer in the action. As therein said:

“And if he fails to comply with the order legally and properly made, after being by its service brought to the knowledge of himself or his attorneys, he may forfeit his right to proceed in the action, and even entitle the defendant to a dismissal of the complaint.”

And in 58 Hun, 181 ; 33 St. Rep. 781 , where the plaintiff moved to vacate the ord'er for his examination, it was said:

“No. opportunity, therefore, was afforded to the defendant to make a personal service of this order upon the plaintiff; but from the other circumstances in the case * * * it is evident that the plaintiff has been actuated with the intention, when he has visited this city, of evading the order, and practically declining to obey its mandate; and, under these circumstances, the court could not, with any respect for its own proceedings, listen to any application to vacate its order. It is his duty, as a suitor in court, to obey the direction given by its justices for the purpose of promoting the proceedings in the litigation; and, as long as he intentionally avoids placing himself where he may be personally served with the order, he cannot consistently expect to be heard in an application to vacate it.”

It is true that in both of these cases the relief was denied upon the ground that the plaintiff was guilty of misconduct and was contumacious, in that, being a resident of the state, he refused to obey an order served upon him within the state, and, as to another order, absenting himself, so that service could not be obtained. They are authority, however, for the proposition that, as long as the order for the examination remains in full force and effect, it cannot, be treated as a nullity, but that it is the duty of the person against whom it is obtained either to obey it or to move to have it vacated."

The regularity and sufficiency of the papers upon which the order of June 1st was granted, having never, therefore, been called in question, it must be assumed that the order is a proper one, and made upon proper application; and, the order for the examination of the plaintiff's president being in full force and effect, the defendant was entitled to the benefit of such examination; and, failing to obtain the same by the default or disobedience of the plaintiff, he was seemingly entitled to some relief, for which he applied to the court.

The suggestion that, with regard to obeying orders, there is a

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distinction between those made against a resident and those made against a non-resident party, if recognized, would present an anomaly in our practice, because in effect it would be according to a' non-resident rights and privileges which are denied to our own citizens. It would in effect be holding that while, in an action brought against a resident, he must submit to all the orders and mandates of the court, a nonresident can choose his forum, and proceed in utter disregard of the court’s directions. We do not think a non-resident plaintiff can claim rights and immunities denied to a resident party, and ignore orders and directions of the court brought to the actual knowledge of his attorney or himself. Non-residence does not enlarge his rights or diminish those of the defendant. If such a rule were to prevail, it would be easy to have claims assigned to nonresidents, or, in casees where they had claims in their own rights, to place themselves just outside of the jurisdiction of the court, and proceed against our citizens, without being amenable to the orderly procedure which in actions affords to a defendant certain rights as against the plaintiff. It may be, since the Code of Civil Procedure provides (section 873) that service of the order “must be made within the state,” that the court is without power by service without the state to require a nonresident party to come into the jurisdiction and submit to an examination, or punish him for contempt should he disobey such an order; but this is an entirely different thing from saying that the court has not the power to direct, upon a proper showing being made by a defendant for the examination of a nonresident plaintiff, that, until such plaintiff shall submit himself to the jurisdiction of the court for the purposes of such examination, the time within which the defendant shall be required to answer shall be extended, or such other relief afforded as will accord to the defendant the same rights against a nonresident as he wquld have against a resident plaintiff. Without passing upon the question, therefore, as to-whether the court', by reason of the failure of such nonresident to appear within the jurisdiction for the purposes of service, could grant the. motion to dismiss the complaint or the action, we think that it was not without power to accord some relief, and that it was erroneous, where such relief was asked, for the court, not only to deny it, but to go one step further, and direct that the defendant should serve his answer peremptorily within ten days. We think, therefore, that so much of the order .as requires the defendant to serve his answer should be reversed, and that relief should be accorded to" the defendant by extending his time to answer until such time as the plaintiff submits himself to the jurisdiction of the court, or applies for and secures a vacation of the order for his examination.

Order accordingly reversed, with $10 costs of the motion below, and $10 costs on this appeal, and disbursements.