Bradley & Currier Co. v. Harrison

23 Misc. 241, 51 N.Y.S. 304

Opinion

Fitzsimons, Ch. J.

The plaintiff procured an order for the examination of the defendant Harrison as an adverse party Under section 873 of the.Code of Civil Procedure.

The 'order was served upon him, but no'fees were paid him. Upon the return day of said order he appeared by attorney making the preliminary objection, that “ Harrison had not been paid or tendered the fees prescribed by section 874 of the Code,” which objection was overruled by the Special Term justice and an. order was made requiring him to submit to an examination. .

The .order appealed from must be reversed. Unless waived by Harrison, it was the duty of ■ the plaintiff to have paid him, upon the service of the order for his examination, 'the fees required to be paid in such instances prescribed in section 874; their failure to do so rendered the service of said order void and entitled him, upon its return day, to move for its vacation for that reason; the refusal to grant his motion to that effect, we think, was error and entitled him to a reversal of the order appealed from and also to a dismissal of the order for his examination. In view of this ruling it is not necessary to consider the questions presented by the appellants’ counsel.

Order appealed from reversed, with -costs.

O’Dwyer, J., concurs.

Order reversed, with costs.