(55 Mise. Rep. 32.)

#### GILROY v. INTERBOROUGH-METROPOLITAN CO. et al.

(Supreme Court, Special Term, New York County.

June, 1907.)

1. Discovery—Under Statutory Provisions—Order—Vacating.

An order for the examination of plaintiff, and an order, on a showing that plaintiff was without the state, directing that the service of the order for examination be made by service of a copy thereof without the state, will be set aside where it appears that plaintiff is a resident of Scotland, and is not, at the time, within this country.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Discovery, § 75.]

2. Depositions—Persons Whose Depositions May be Taken—Parties.

Under the express provisions of Code Civ. Proc. § 887, the examination of any party to an action may be had by commission.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Depositions, § 12.]

Action by Alexander Bruce Gilroy against the Interborough-Metropolitan Company and others. Motion to set aside an order for the examination of plaintiff and an order directing that the service of such *172order of examination be made by service of a copy thereof without the state on plaintiff. Motion granted.

Moss & Feiner, for plaintiff.

Underwood, Van Vorst & Hoyt, for defendants.

TRUAX, J.

This is a motion to set aside an order for the examination of the plaintiff in order to enable the defendant, who obtained the order, to prepare his answer.

The papers show that the plaintiff is a resident of Scotland and is not now in this country, and the order directs him to appear before a referee in the city of New York on a certain day to be examined concerning the matters relevant to the issues in this action. The said defendant, upon an affidavit showing that the plaintiff was without this state, obtained an order directing that the service of said order of examination be made by service of a copy thereof without the state upon the said plaintiff. I am of the opinion that both of the above-mentioned orders should be vacated and set aside. It was held in Witcher v. Tribune Ass’n, reported in the Law Journal of May 15, 1890, that the power of the'court-to order an examination of a party before trial, at the instance of an adverse party, was purely statutory and depended solely upon the provisions of the Code, and that, therefore, when it appears that the party sought to be examined is a nonresident of the state and cannot be served within the state, the court may decline to make what appears to be a useless order. This case was affirmed by the General Term of the Superior Court in a decision which is reported in 59 Super. Ct. 224, 14 N. Y. Supp. 290. It is- true tíiat this case was criticised and not followed in Campbell v. Bauland Co., 41 App. Div. 474, 58 N. Y. Supp. 984, but I prefer to follow the Witcher Case, because I deem its reasoning the sounder. In Farmers’ Nat. Bank v. Underwood, 6 App. Div. 373, 39 N. Y. Supp. 596, the court called attention to the fact that no motion was made to vacate the orders directing the service of the order for the examination upon the person who was to be examined without the state, nor was the question presented as to the power of the court to direct such a service. In Witcher v. Tribune Ass’n (Super. Ct.) 14 N. Y. Supp. 290, the court called attention to the fact that section 873 of the Code of Civil Procedure expressly provided that service of the order for the examination of a party must be made within this state, and that section 886 provided that if the person to be examined is a resident of the state, he shall not be required .to attend in any cbunty other than that in which he resides, or where he has an office for the regular transaction of business, in person, and that, if he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless for special reasons.stated in the affidavit the order otherwise directs; and it was there held that there is no power in the court to require the plaintiff, as a resident of another state, to come to New York from such state for the sole purpose of being examined. It was contended on the argument that, if the plaintiff could not be compelled to come into this state to be examined, he would obtain a right that the .defendants could not obtain, and that having by bringing the action sub*173mitted himself to the jurisdiction of the court he should be compelled to come within the state. The view that I have taken does not prevent the defendants from obtaining an examination of the plaintiff. They can obtain such an examination under sections 887 et seq. of the Code of Civil Procedure. Section 887 provides that any party to the action may be examined on commission.

Motion to dismiss the orders granted, with $10 costs.