Webster v. Stockwell

3 Abb. N. Cas. 115

• Court: New York Supreme Court
• Decided: November 15, 1877
• Status: Published

Opinion

Lawrence, J.

The examination must proceed. Section 873 of the Code of Civil Procedure, in my opinion, renders it obligatory upon the justice to whom the affidavit is presented to grant the order, provided the facts required by section 872 be stated ;and appear in the affidavit.

The defendant having appeared in the action, the service on the attorney was sufficient [Code, section 875, and my memorandum in the case of Thompson v. Sickles, November, 1877.

*

There was no appeal.

The decision in the case of Thompson «. Sickles, here referred to, is as follows:

Lawrence, J.—A more critical examination of the provisions of section 875 of the Code of Civ. Procedure than I was able to make when these papers were first laid before me satisfies me that my first impression was erroneous, and the defendant’s attorney is right in contending that service can properly be made upon the attorney for the plaintiff. That section provides, in substance, that where the party sought to be examined has appeared in the action, a copy of the order and of the affidavit on which it is granted must be •served upon his attorney, but if he has not appeared, they must be served upon the party (See also Mr. Throop’s note to section).

Order granted.