Winston v. English
The Superior Court of New York City
This is an action for damages for the publication of several alleged libels. An order of arrest was granted upon an affidavit, and the defendant was arrested. The summons was served at the same time. Immediately the defendant applied for, and obtained an order for the examination of the plaintiff, with a view to ascertaining information respecting the alleged libels upon which to frame his answer.
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This is an action for damages for the publication of several alleged libels. An order of arrest was granted upon an affidavit, and the defendant was arrested. The summons was served at the same time. Immediately the defendant applied for, and obtained an order for the examination of the plaintiff, with a view to ascertaining information respecting the alleged libels upon which to frame his answer. The plaintiff moved to vacate this order, as having been improvidently granted, upon the ground that the examination was not wanted for any legitimate purpose, and that it could not be had until the…
1Opinion of the Court
By the court: Monell, J.
Upon the return of the summons, issued by a j udge of this court, requiring the plaintiff to appear and be examined before trial at the instance of the defendant, under section 391 of the Code, it was shown, by affidavit, that although the action had been commenced by the service of a summons, no complaint had been served upon the defendant; and it is understood that the decision at the special term was put upon the ground, that until the complaint was served upon the defendant there was nothing upon which the plaintiff could be examined.
But the defendant, upon his…
2Cases cited2 opinions
- Pack v. . the Mayor, C. of New-YorkNew York Court of Appeals · 1850
- McVickar v. GreenleafThe Superior Court of New York City · 1865