Schilling v. Town of Monroe

Wits chief, J.

Motion to vacate a subpoena requiring the plaintiff to appear before the supervisor of the town of Monroe to be examined in respect to a certain claim against the town of Monroe granted, without costs. The notice of claim was filed about January 15, 1941, and no action on the claim having been taken, a summons and complaint were served on May 12, 1941, and issue was joined May 23, 1941. The subpoena was issued at the time the answer was served. While the sections of the Town Law regulating the examinations of claimants are not identical with the provisions of the Village Law regulating such examinations, the principle involved is the same. It was held in Reynolds v. Village of Nyack (258 App. Div. 667) that the power of the village of Nyaek to examine a claimant was only in respect to a claim and tliat a claim which has lawfully become the subject of an action may not be made the subject of an examination under section 341-c of the Village Law. Section 120 of the Town Law also relates exclusively to claims against the town, and must be held to have ho application to a claim in suit. ■,