
    KAPLAN v. SHER.
    (Supreme Court, Appellate Term.
    February 5, 1909.)
    Discovery. (§ 77)—Examination of Party Before Trial—Failure to Appear.
    Where the affidavit oí service of an order for defendant’s examination before trial stated that the “statutory fee for attendance” was paid to him when the order was served, and the affidavits of defendant and a disinterested person in opposition to a motion to punish him for contempt in failing to obey the order stated that no money was paid to him, a finding that the witness fees were paid as required by Code Civ. Proc. § 874, was unauthorized.
    [Ed. Note.—For other cases, see Discovery, Dec. Dig. § 77.*]
    Appeal from City Court of New York, Trial Term.
    Action by Jacob Kaplan, an infant, "by Mary Kaplan, his guardian ad litem, against Louis Sher. From an order granting a motion to punish defendant for contempt, he appeals. Reversed.
    Argued before GILDERSLEEVE, P. J., and GIEGERICH and SEABURY, JJ.
    Herman Kahn, for appellant.
    H. B. David and Henry S. Mansfield, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   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.  