p. 387EDWARD R. DUNHAM, Plaintiff and Appellant, v. THE MERCANTILE MUTUAL INSURANCE CO., Defendant and Respondent.Headnote
Examination before trial.In this case the objections of the plaintiff (a non-resident) to his examination before trial were sustained on the ground that the affidavit upon which the order was granted omitted to state plaintiff’s residence, or that inquiry had been made to ascertain it, or that there was difficulty in learning it. It also omitted to state whether plaintiff had appeared by attorney, no name, residence, or office-address of any attorney on plaintiff’s behalf appearing in defendant’s affidavit. Also, upon the ground that there was no proof of any notice to plaintiff of the order, or that any order, affidavit, or subpoena in relation thereto was served upon him. The affidavit and order were served upon plaintiff’s attorney.
Before Curtis, Ch. J., Sedgwick and Freedman, JJ.Appeal by the plaintiff from an order overruling his objections to the proceedings for his examination before trial.
The defendant obtained an order for the examination of the plaintiff before trial, and on the same day a copy of the order and affidavit on which it was obtained was served on the attorney for the plaintiff. Upon the return of the order the plaintiff’s attorney made several objections to proceeding with the examination, which objections are recited in the opinion.
William G. Peckham, Jr., for appellant,
Cited Beach v. Mayor, 4 Abb. N. C. 236 ; Levy v. Loeb, and Corbett v. De Comeau, ante.
p. 388Scudder & Garter, attorneys, and George A. Black, of counsel, for respondents,
Cited Peake v. Proul, 2 Abb. N. C. 418 ; Webster v. Stockwell, 3 Id. 115; Friebey v. Branigan, Id. 122; Wood v. Keal, Id. 122.The affidavit upon which the defendant applies for the examination of the plaintiff, fails to comply with the requirements of sections 872 and 886 of the new Code of Civil Procedure.
It omits any statement of the residence of the plaintiff, or that any inquiry has been made to ascertain it, or that there is any difficulty in learning it. It omits to state, whether the plaintiff has appeared by attorney, nor does the name, residence, or office address of any attorney on plaintiff’s behalf appear in the defendant’s affidavit. There is no proof of any notice to the plaintiff of this order for his examination, or that any order, affidavit or subpoena have been served upon him in respect to it.
To sustain the order under such circumstances, might subject non-resident parties to great hardships. It appears from the defendant’s affidavit, that the plaintiff resides in another State, and if so, he is entitled to the protection given him as a non-resident of this State by section 886.
The order appealed from should be reversed with $10 costs.
Sedgwick and Freedman, JJ., concurred.