Freiberg v. Branigan , 3 Abb. N. Cas. 121 ( 1877 )

Davis, P. J.

No order, summons or subpoena has been served on defendant, and no fees have been paid or tendered. The plaintiff desires to examine her as a witness. I think he cannot put her in contempt until he first served her with the order, or a subpoena or summons, and pays or tenders fees.

Motion for attachment denied, but without costs.

Lawrence, J.

I understand it to be conceded on the argument that the witness fees had not been paid, either to the attorney on whom the order was served or to the defendants whom it is proposed to examine. Since this motion was submitted, the presiding justice has held that a party cannot be put in contempt for not appearing as a witness until the witness fees have been paid or tendered (Freiberg v. Branigan, December 12, 1877, per Davis, P. J.).

Motion to punish defendants for contempt is therefore denied, without costs.