Boorman v. Atlantic & Pacific Railroad — 24 N.Y. Sup. Ct. 555

Majority

p. 555

J. MARCUS BOORMAN, Appellant, v. THE ATLANTIC AND PACIFIC RAILROAD COMPANY, Respondent. SAME v. SAME.

Headnote

Section, 870 of the Code of Civil Procedure — does not authorize the examination of the directors of a defendant corporation.

The directors of a defendant corporation are not parties to the action, and an order requiring them to appeal- for examination and to produce books and papers is not authorized by section 870 of the Code of Civil Procedure.

Appeal from order made by the chief justice of the Court of Common Pleas, sitting as county judge, vacating an order made by'him under section 870 of the Code of Civil Procedure, requiring certain of the directors of the defendant corporation to appear and testify, and to produce certain books and papers for inspection, so as to enable plaintiff to take copies thereof.

J. M. Boorman, for the appellant.

John E. Burrill, for the respondent.

The examination of the directors named in this proceeding was not authorized, unless within the purview of section 870 of the Code of Civil Procedure. As they are not parties the statue does not apply to them. (The People v. The Mutual Gas-light Co., W’kly Dig. [September 24, 1878], p. 204.) The production of the books and papers was a part of the proceeding to examine, and in the nature of a subpoena duces tecum, and fails therefore, inasmuch as the order was made without authority. The learned judge properly vacated it.

Order affirmed, with ten dollars costs and disbursements of the appeal.

Present — Brady, P. J., and Potter, J.

Order affirmed, with ten dollars costs and disbursements.