Kaplan v. Sher

GIEGERICH, J.

The contempt alleged, and which the order appealed from undertakes to punish, was the failure of the defendant to obey a previous order directing him to appear for examination before trial in this action. The affidavit of the process server contains the statement that he served the order upon the defendant by delivering to and leaving with him a true copy thereof, at the same time exhibiting the original, and by “paying to him the statutory fee for attendance.”

Affidavits of the defendant and of a disinterested third person were submitted in opposition to the present motion, in both of which the service of the order is circumstantially described, and it is expressly stated in both that no money was given or tendered to the defendant when the order was served. Upon this state of the proofs the court below could not properly find that witness fees had been paid or tendered, and such payment or tender was essential to a proper service of the order. Code Civ. Proc. § 874.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.