Supplementary Proceedings upon Judgment in Action of Backenstos v. Noyes

189 A.D. 928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1919
• Status: Published

Opinion

Page, J. (dissenting):

These are appeals, from an order vacating and setting aside the service of a third party order in supplementary proceedings, and a subpoena duces tecum, and a subpoena for the attendance of Fannie A. Noyes individually and as secretary and treasurer of a domestic corporation, upon the ground that she was a non-resident of this State and was in attendance at the county court house in Kings county pursuant to an order for her examination as a party before trial in an action pending in the Supreme Court. I dissent from the affirmance of these orders on the ground: (1) That she did not come into this State voluntarily as a witness. She came here under compulsion of an order of the Appellate Division of the Supreme Court, Second Department, which provided that if she failed to appear her answer would be stricken out; (2) the process was not against her individually, but against the domestic corporation of which she was secretary and treasurer. The examination of the corporation by her as an officer thereof was sought. (Code Civ. Proc. § 2444.) The individual immunity of a nonresident does not extend to the non-resident officer of a domestic corporation. (See Breon v. Miller Lumber Co., 65 S. E. Rep. 214.)