Opinion
June 16, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Third District.
Louis Ehrenberg [ Benjamin Machinist of counsel], for the appellant.
John P. Booth, for the respondent.
The proper practice on plaintiff's failure to submit to an examination after notice to that effect was properly served is for the defendant to apply for a stay until it does so submit. ( Graziano v. Eagle Pencil Co., 207 A.D. 225; Meinig Co. v. U.S. Fastener Co., 194 id. 397.) The rule is well established that where a foreign corporation invokes the aid of the courts of this jurisdiction it will be required to submit to examination in this State on the penalty of being stayed until it does. It is only where serious hardship would result to such a corporation and its officers be required to travel a great distance that the defendant will be relegated to the remedy of applying for a commission. ( Meinig Co. v. U.S. Fastener Co., supra.)
Plaintiff must assume the burden as well as enjoy the benefits for the privilege of suing in this State.
The order is reversed, with ten dollars costs, and the motion for a stay granted, with ten dollars costs.
All concur; present, DELEHANTY, LYDON and LEVY, JJ.