Appleton v. Appleton , 1867 N.Y. App. Div. LEXIS 202 ( 1867 )

Sutherland, J.

A proceeding under section 391 of the Code, furnishes no room or occasion for the doctrine of the inherent power of the court, whatever those words may mean.

Such proceeding is exclusively a statutory one in derogation of the common law, and section 394 should he looked upon as a statutory definition and limitation of what may be done, or of what order or orders may be made, in case a party refuses to attend and testify as in the four preceding sections provided, when-regularly-notified, and required to do so under such sections.

Section 394 does not give the power to stay the party’s ■ proceeding in the action, and the order appealed from should be reversed on that ground.

Besides, the power of the court is limited to the territory of the state, and in the absence of any statute undertaking to authorize a service out of this state, the service of the judge’s summons and of the notice on the plaintiff in Massachusetts, must be deemed to have been utterly void and ineffectual for any purpose.

The order should be reversed, with $10 costs.

Leonard, J.

The power to strike out a pleading is to be enforced under section 394 of the Code of Procedure only in case of a refusal to testify, as in the four previous sections provided. Section 390 provides for an examination by a commission where the party is out of this state. The defendant must resort to that remedy, and then, in case the plaintiff refuses to testify, the court may strike out his complaint. It is possible the court may permit an open commission to examine the plaintiff orally, and then, in case of refusal to testify, exercise the power permitted by section 394.

The present order is clearly without authority, and is not a legitimate exercise of power, in my opinion.

I concur with Judge Sutherland.