Rossner v. New York Museum Ass'n

Barnard, P. J.: By Code' of Civil Procedure, section 799, it is provided that where a party has appeared all notices or other papers must be [183] served upon bis attorney. By section 802 tbe above mentioned section 799 is made inapplicable to tbe service of papers to bring a party into contempt. Tbe plaintiff brings this action to recover for services alleged to bave been rendered to tbe defendant. Tbe answer is a general denial. Tbe defendant is a New York corporation. The plaintiff presented bis petition under sections 803, 804 and 805, Code, for an inspection of defendant’s books of account, alleging, among other things, that the services were rendered under tbe employment of a person purporting to act as tbe agent of defendant, and that the books will show that such person was actually tbe agent of defendant. Upon this petition tbe court at Special Term made an order that defendant allow plaintiff or bis attorneys to inspect their books, or show cause at a time and place specified in tbe order. This time and place need not be eight days. (Code of Civil Procedure, 805.) Tbe order was served upon the attorney for defendant, and not upon any other person representing tbe defendant. At tbe time and place specified; tbe defendant appeared and opposed tbe order for discovery upon an affidavit that tbe books were not under tbe control or custody of tbe attorney. Tbe court then made an absolute order for tbe production of tbe books. This order was served upon tbe defendant’s attorney only, and was not obeyed. Tbe plaintiff then upon proof of such service and of such disobedience obtained an order to show cause why the answer of defendant should not be stricken out for failure to obey tbe order under section 808, Code of Civil Procedure. The only objection made by defendant, which is to be considered, is tbe objection that the papers were not served on tbe defendant instead of the attorney. The other objections are to tbe impropriety of tbe first order. That order must stand until set aside. Tbe defendant might move to vacate it; but while it stands it must be obeyed. It is quite unsettled what are tbe “ ordinary proceedings in tbe action.” It is well settled that in such proceedings all notices must be served upon tbe attorney. It was decided in Becker v. Hotchkiss (8 How. Pr., 68), that application for an order of arrest was an ordinary proceeding [184] and that service of an injunction was not. It was the old rule, that when the party proceeded by order to show cause service need not be made upon the party. (Stafford v. Brown, 4 Paige, 360; Brown v. Andrews, 1 Barb., 227; Albany City Bank v. Schermerhorn, 9 Paige, 372.) In Pitt v. Davison (37 N. Y., 235), the Court of Appeals held that an order to enforce civil remedies was properly served upon the attorney. The application in this case seems to fall directly within the principle. The court may direct a discovery and an inspection of books. If it is disobeyed, it may strike out the answer of defendant. It is one of the ordinary proceedings in an action, and the order striking out the answer is simply an enforcement of a civil remedy. I think, therefore, that it was not necessary to serve the order upon defendant’s officers, and that the judgment and order should be affirmed, with costs. Present — Barnard, P. J., and Beady, J. Order striking out defendant’s answer and the other order appealed from and judgment, affirmed with costs.