(87 App. Div. 248.)

#### HALL v. REDINGTON.

(Supreme Court, Appellate Division, First Department.

November 6, 1903.)

1. Order—Resettlement—Power to Compel.

Where, on a motion to compel plaintiff’s attorney to accept service of an order for examination of plaintiff before trial, the court indicated in a memorandum denying the motion that it had no jurisdiction to grant the order, and entered an order stating in general terms that such motion *280was denied, an appeal from an order denying a motion to resettle the last-named order by inserting therein that the motion was denied for want of power will he dismissed.

2. Examination of Party before Trial—Substituted Service.

Code Civ. Proc. § 870, which authorizes the taking of the deposition of a party to a pending- action; section 872, which defines the requirements of an application for the examination; section 874, which provides that lawful witness fees must he paid or tendered when the order is served on the person required to attend, and which prescribes punishment for failing to obey; and section 875, which requires service of a copy of the order and affidavit on the attorney for the party—contemplate that the service of the order shall be made personally on the party to the action, and within the state, and a substituted service on his attorney is unauthorized.

¶ 2. See Discovery, vol. 16, Cent. Dig. § 73.

Appeal from Special Term, New York County.

Action by Helen H. Hall against Caroline G. Redington, impleaded. From an order denying a motion to compel plaintiff’s attorney to accept service of order for examination before trial, and from an order denying motion to resettle said order, Caroline G. Redington appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

Raphael J. Moses, for appellant.

Vincent P. Donihee, for respondent.

PATTERSON, J.

The defendant, having procured an order for the examination of the plaintiff before trial, made diligent efforts to serve it upon her personally, but was unable to do so, whereupon she made a motion to compel the plaintiff’s attorneys to accept service of the order, and to require the plaintiff to attend for examination after such service. That motion was denied, the court at Special Term indicating in a memorandum that it had no jurisdiction to grant such an order. On the denial of the motion an order was entered stating, in general terms, “that such motion be, and the same hereby is, denied.” Thereupon the defendants’ attorney moved to resettle the last-named order by having inserted therein a statement that the motion for substituted service was denied for want of power.

The appeal from the last-mentioned order must be dismissed. We cannot compel the court below to decide a motion on any particular ground, especially after the attention of the justice deciding the motion has been called to the subject, and he "has declined to base his decision on that particular ground.

The first order appealed from was properly made.. There is no provision of the statute which authorizes substituted service of an order for the examination of a party to an action. The sections of the Code of Civil Procedure which refer to the subject sufficiently indicate that the service of such an order must be made personally upon the party to the action, and within the state. Section 870 provides that the deposition of a party to an action pending in a court of record, etc., may be taken at any time before the trial, as prescribed in article 1 of title 3 of chapter 9 of that Code. Section 872 defines the *281requirements necessary to an application for such examination. Section 874 provides that witness fees at the rate prescribed by law in an action in the Supreme Court must be paid or tendered when the order is served upon the party or other person required to attend, and, if the party or person so served fails to obey the order, his attendance may be compelled, and he may be punished in like manner as if he failed to obey a subpoena issued from the court in which the action is pending. Disobedience of the order involves a punishment for contempt, and section 874 plainly prescribes that contempt proceedings may be instituted only as against a party personally served with the order. Section 875 provides that a copy of the order and the affidavit upon which it was granted must be served upon the attorney for each party to the action in like manner as a paper in the action, that provision only relating to due notification to the attorney of the party. The proceedings to punish for contempt are the same as those that would be taken for failure of a person to obey a subpoena, and the first requirement would be, in such case, that the subpoena be served upon the party sought to be put in contempt.

The order denying the motion for substituted service must be affirmed, with $10 costs and disbursements. The appeal from the order denying the motion to resettle the first order appealed from should be dismissed, with $10 costs. All concur.