Loop v. Gould — 24 N.Y. Sup. Ct. 585

Majority

p. 585

EDWARD S. LOOP, Appellant, v. JAY GOULD, Respondent.

Headnote

Order requiring a party to .appear for examination, must be personally served.

To punish a party for contempt, in failing to appear and be examined as a witness before trial, a copy of the order requiring him so to do must have been personally served upon him.

Appeal from an order denying plaintiff’s motion to vacate an order requiring him to appear and be examined before trial, and directing that in default of his so doing his complaint be stricken out. The order and papers relating to the examination were served upon the attorneys for the plaintiff but not upon the plaintiff himself.

Henry D. Hotchkiss, for the appellant.

II. W. Bookstaver, for the respondent.

The motion made by the plaintiff should have been granted, for the reason that there was no personal service upon the plaintiff of the order requiring him to appear. (See Tebo v. Baker, decided, by the Court of Appeals and reported in the Albany Law Journal, Saturday, May 17, 1879, vol. 19, p. 398.) To subject a party to any punishment in suc*h proceeding it is necessary, as Ave understand the decision referred to, that there should be a personal

p. 586

service upon the party of the process requiring him to appear and be examined.

For this reason, we think that the order should be reversed, with ten dollars costs and disbursements.

Present — Brady, P. J., Ingalls and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements.