Dunham v. Mercantile Mutual Insurance

56 How. Pr. 240, 6 Abb. N. Cas. 70

Opinion

Curtis, Ch. J.

The affidavit upon which the defendant applies for the examination of the plaintiff fails to comply with the requirements of sections 872 and 886 of the new Code of Civil Procedure. It omits any statement of the residence of the plaintiff or that any inquiry has been made to ascertain it, or that there is any difficulty in learning it. It omits to state whether the plaintiff has appeared by attorney; nor does the name, residence or office address of any attorney on plaintiff’s behalf appear in defendant’s affidavit. There is no proof of any notice to the plaintiff of this order for his examination, or that any order, affidavit or subpoena jias been served upon him in respect to it. To sustain the order under such circumstances might subject non-resident parties to great hardships. It appears from the defendant’s affidavit that the plaintiff resides in another state, and if so he is entitled to the protection given him as a non-resident of this state by section 886.

The order appealed from should be reversed, with costs.

All concur.