Cone v. Bernanke

Appellate Terms of the Supreme Court of New York

Cone v. Bernanke

154 Misc. 798, 278 N.Y.S. 566, 1935 N.Y. Misc. LEXIS 1784

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1935

StatusPublished

This text of 154 Misc. 798 (Cone v. Bernanke) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cone v. Bernanke, 154 Misc. 798, 278 N.Y.S. 566, 1935 N.Y. Misc. LEXIS 1784 (N.Y. Ct. App. 1935).

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Opinions

Per Curiam.

In view of the fact that the provision in the Code of Civil Procedure (§ 874) for payment of witness fees when the order for examination is served “ upon the party ” was omitted from the Civil Practice Act (§ 299), and that by the amendment of 1933 (Laws of 1933, chap. 740) where a party has appeared in an action the order for examination may be served upon his attorney and defendant’s answer stricken out for willful failure to appear, without any reference to the payment of witness fees, it would seem that such payment was not required in this case. Where the same remedy is awarded for failure of a party to obey a subpoena (Civ. Prac. Act, § 405) payment or tender of the statutory fees is essential.

Order affirmed, with ten dollars costs.

Ltd on and Frankenthaler, J J., concur; Hammer, J., dissents, with opinion.

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Per Curiam.

In view of the fact that the provision in the Code of Civil Procedure (§ 874) for payment of witness fees when the order for examination is served “ upon the party ” was omitted from the Civil Practice Act (§ 299), and that by the amendment of 1933 (Laws of 1933, chap. 740) where a party has appeared in an action the order for examination may be served upon his attorney and defendant’s answer stricken out for willful failure to appear, without any reference to the payment of witness fees, it would seem that such payment was not required in this case. Where the same remedy is awarded for failure of a party to obey a subpoena (Civ. Prac. Act, § 405) payment or tender of the statutory fees is essential.

Order affirmed, with ten dollars costs.

Ltd on and Frankenthaler, J J., concur; Hammer, J., dissents, with opinion.

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Bluebook (online)

154 Misc. 798, 278 N.Y.S. 566, 1935 N.Y. Misc. LEXIS 1784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cone-v-bernanke-nyappterm-1935.

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