Opinion
December 2, 1960
Order, entered on November 10, 1960, denying petitioner's motion to vacate a subpoena duces tecum unanimously reversed, on the law, with $20 costs and disbursements to petitioner-appellant, and the motion granted, without prejudice to the bringing of any other appropriate proceeding. The record made by respondent is wholly insufficient to justify the occasion for, or the scope of, the subpoena issued. That deficiency may not be cured by the statements contained in respondent's brief. If respondent did not have sufficient time to make an adequate record upon the return day of petitioner's motion there are appropriate measures that could have been taken to obtain additional time. Moreover, but for the fact that petitioner did not interpose a special appearance, the subpoena must have been vacated for absence in the record of any evidence to establish that petitioner, a foreign corporation, is doing business or is present within the State of New York.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.