Mascola v. City Service Taxi Corp. — 123 Misc. 304

Majority

p. 304

Harry Mascola, Plaintiff, Respondent, v. City Service Taxi Corporation, Defendant, Appellant.

Supreme Court, Appellate Term, First Department,

June 5, 1924.

Headnote

Depositions — examination before trial — court has no power to stay defendant from defending action on its president’s failure to appear for examination pursuant to notice served on its attorneys — order reversed and motion for stay denied.

Plaintiff’s motion to stay the defendant corporation from defending an action in which defendant’s attorneys had been served with a notice for the examination of its president before trial, made upon the ground that the president had failed . to appear for examination, should be denied, since the effect of staying all proceedings on the part of the defendant was as if the court had stricken out defendant’s answer, and such procedure is unwarranted.

Appeal by defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of plaintiff and against defendant, staying defendant from defending the action until it submits, by its president, to an examination before trial.

Norwood & Walsh (John G. McCarthy, of counsel), for the appellant.

Charles J. Herson, for the respondent.

Action for injuries to plaintiff’s' automobile bus resulting from defendant’s alleged negligence.

Plaintiff served notice of its desire to examine defendant’s president before trial upon defendant’s attorneys. Defendant’s president failed to appear; his default was taken; plaintiff thereupon moved to stay defendant from defending unless it produced its president for examination. The motion was granted. No notice or subpoena was served upon defendant’s president so as to compel him to attend.

The effect of staying all proceedings on the part of defendant was the same as if the court struck out the answer, and such procedure under the circumstances is unwarranted. Levine v. Moskowitz, 206 App. Div. 194 .

Order reversed and motion denied, with ten dollars costs to appellant to abide the event.

Gavegan and Mitchell, JJ., concur.

Order reversed and motion denied.