Bloch v. Guaranty Trust Co. , 119 Misc. 832 ( 1922 )

Marsh, J.

The defendants duly served on plaintiff’s attorney pursuant to section 290 of the Civil Practice Act a notice for the taking of the plaintiff’s testimony before trial. No motion was made to vacate or modify the notice, nor is any objection now urged to its regularity and sufficiency. The plaintiff failed to appear at the time and place specified. He offers no excuse and his default must, therefore, be taken as willful. When the defendant now seeks to punish him he claims to be immune because no subpoena was served upon him personally. It seems that under section 405 of the Civil Practice Act, a party cannot be adjudged in contempt nor can his pleading be stricken out unless a subpoena was so served. If a subpoena is to be required for all purposes, however, there seems to be little value in permitting or requiring the notice to be served on the attorney, and the new procedure has failed of its boasted simplicity. I doubt if a double service was intended and, if not, the plaintiff’s unexcused disregard of the notice should not be allowed to impair the defendant’s rights. Accordingly all proceedings on the part of the plaintiff except to review this order are hereby stayed until the plaintiff shall have submitted himself to examination pursuant to the defendant’s notice, after giving five days’ notice of his intention so to do.

Ordered accordingly.