Cone v. Bernanke

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

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.