Tebo v. . Baker
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term striking out the answer of defendant Eliza Baker. (Reported below, 16 Hun, 182.) The defendant answered in this action, and thereafter the plaintiff obtained an order for her examination before trial under the provisions of the Code relating to depositions. (Title 111, art. 1, §§ 870, 872, 873.) It was not served upon her, but upon her attorneys.
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Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term striking out the answer of defendant Eliza Baker. (Reported below, 16 Hun, 182.) The defendant answered in this action, and thereafter the plaintiff obtained an order for her examination before trial under the provisions of the Code relating to depositions. (Title 111, art. 1, §§ 870, 872, 873.) It was not served upon her, but upon her attorneys. She did not appear as required by the order, and on application of the plaintiff, the Supreme Court at Special Term made…
1Opinion of the CourtDanforth, J.
The plaintiff had a legal right to the order requiring the defendant to appear for examination, but unless that order was properly served the court had no jurisdiction to punish her for not obeying it, and whether it was or not, is the question on this appeal. 1. The statute referred to, does not in terms direct the order to be served personally, but such is the necessary inference. It must requre “the party, or person, to appear before the judge.” It must be served within the State (§ 873), and “if the party so served fails to obey the order, his attendance may be compelled.” (§ 874.) These…
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