
    THAULE against RITTER.
    
      New York Common Pleas ; Special Term,
    
    
      July, 1872.
    Examination of Party Before Trial.—Punishment for Failure to Appear.
    The summons for the examination of a party before trial, provided fen. by section 391 of the Code of Procedure, cannot be made returnable in less than five days, except by special order, which must be served on the party’s attorney.
    Notice of the examination must also be given to the party’s attorney.
    In a summons signed by a judge of the court, for the examination of a.party under section 391 of the Codeof Procedure, it is irregular to insert a notice that if the party fail to appear, his answer will be stricken out.
    Nor on the party’s failure to appear, after service on him of such a summons, can an order be granted by the judge, ex parte, striking out his pleading.
    It seems that even the court could not punish Mm for his contempt in failing to appear, without previous service of copies of affidavits charging him with his misconduct, and the allowance of a reasonable time to enable him to make his defense, upon regular notice or order to show cause returnable at some time to be specified, or on a bailable attachment to bring him into court to answer.
    Motion to set aside orders as irregular.
    In two actions, one brought by Henry W. Thaule, and the other by Margaret Krekeler, against Adam Ritter, executor, &c., the plaintiffs after issue joined and before trial, upon an affidavit conforming to the requirement of section 391 of the Code and rule- 21 of the supreme court, obtained the signature of a judge of this court to a summons in each of these cases, dated March 19, 1872, requiring the defendant to appear before the judge at chambers, on the 22nd of that-month, at 10 A.M., to testify and give evidence as a witness in each cause, and it was therein stated that for failure to attend, the witness would be liable (beyond. the ordinary penalties) to have his notice of appearance stricken out, and an application then and there made for judgment.
    The several summons, returnable the .same day, were served personally on the defendant, and his fees as a witness paid him. Ho separate order was made by the judge stating the time for the' examination (under section 391), except as expressed in the summons, nor was any notice given defendant’s attorney of any such order or examination.
    On failure of the defendant to attend, the counsel for the plaintiff, on proof of service of the several summons upon the defendant, moved ex parte and obtained orders of the same judge then sitting at chambers, in each case, striking out the defendant’s appearances and answers and for judgment. Motions were now made to set aside these orders and the judgments, as irregular and unauthorized.
    
      
      D. M. Porter, for the motion ;
    Cited, Hewlett v. Brown, 1 Bosw. 655; Greene v. Herder, 7 Robt. 455; Van Rensselaer v. Tubbs, 31 How. Pr., 193; Draper v. Henningsen, 1 Bosw. 610; Gaughe v. Laroche, 14 How. Pr., 451.
    A. R. Dyett, opposed;
    
    Cited: Woods vs. DeFiganiere, 16 Abb. Pr., 1; S. C., 1 Robt., 607.
   Robinson, J.

[After stating the facts.]—The defendant acted considerately after consultation with his counsel, in declining to appear, and relies on the entire invalidity of the proceeding, because no separate order of the judge was made shortening the time for his examination within five days, nor notice of any such order or examination given his attorney in either case.

I am of the opinion plaintiff’s proceedings were wholly irregular.

1st. In neglecting to obtain and serve on the attorney for defendant, any order shortning the time for defendant’s examination within five days, or giving a notice to him of the intended examination of his client.

After a party has appeared by attorney, notice of all ordinary proceedings in the action must be given the attorney (Code, §§ 414, 417), and his examination as a witness on the requirement of the adverse party, out of court and before trial, is pre-eminently one of which the attorney should be so advised (Greene v. Herder, 7 Robt., 455; Van Rensselaer v. Tubbs, 31 How. Pr., 193.)

2. Although the Code authorizes the punishment of a party for contempt, and to have his appearance and answer stricken out for his misconduct in failing to obey a summons and order duly issued and granted for his examination before trial, on the requirement of the adverse party, the notice of such penalty constituted no essential part of the summons.

The facts authorizing the imposition of such punishment did not exist when the summons was served, and it was wholly irregular, and unauthorized by the statutes relating to contempts, to anticipate any such misconduct by notice, that if it occured, and the party did not attend at the time and place specified, the application for such punishment would then be made. (Hewlett v. Brown, 1 Bosw., 655).

The proceeding for the examination of the defendant as a witness, was simply one before a judge, and not before the court, and his non-attendance (if it had been inexcusable), did not warrant his immediate punishment by the judge as for a contempt, nor by the court, without previous service of copies of affidavits charging him with his misconduct, a reasonable time to enable him to make his defense (2 Rev. Stat., 535, § 3); upon regular notice, or upon order to show cause, returnable some time to be specified, or on a bailable attachment to bring him into court to answer (2 Rev. Stat., 535, § 5).

The motion must be granted, with ten dollars costs in each case.  