Opinion
December, 1922.
Order reversed on the law, without costs, in so far as it grants the motion to set aside the service of the subpœna, and in all other respects affirmed. The action of the court in setting aside the subpœna because it was served a few hours before the notice was served was unnecessary. The action is pending. The subpœna was in the action, and should have been obeyed. If there was no sufficient notice to justify the examination, the examination could not proceed, and the subpœna falls with it. Blackmar, P.J., Rich, Kelly, Manning and Young, JJ., concur.