Grant v. Greene

Laughlin, J.:

The validity of the order is challenged upon the ground that an order to take the deposition of a party or witness pursuant to the provisions of article 1 of title 3 of chapter 9 of the Code of Civil *762 Procedure cannot be made by the court, but only by a judge, but the order from which, the appeal is taken merely fixes a time for the examination to be' had pursuant to a former order duly made by a justice of the Supreme Court. The proceedings on the part of the. plaintiffs had been stayed by an order granted at tlié instance of. tire appellants, until after the time for the examination pursuant to the order of the justice had passed, and, therefore, the objection is not tenable. It appears that on the application of the plaintiffs in this action, a justice of the Supreme Court on the 19th day of January, 1907, duly granted an order for'the examination of the appellants concerning matters relative to the allegations contained in the complaint, pursuant to the provisions.of section 873 of the Code of Civil Procedure, and for that purpose-directed that Greene appear before the referee therein named, at the latter’s office in tlie borough of Manhattan, New York, on the 25th day of January, 1907, at ten o’clock in t'he-forenoon. On the twenty-third day of January the appellant Greene and the companies obtained from the-same justice an order to show cause, returnable at the Special Term one-half hour after the time fixed for the examination, why the order for the examination should not be vacated, and staying proceedings under the order until the hearing and determination of the motion. On the-first-day of February, after a hearing at Special Term, the motion to vacate the order for the examination was granted, but on appeal to this court that order was duly reversed on-the 5 th 'day of April, 1907. ( 118 App. Div. 850 .) The reversal restored the original order,, but the time for the examination thereunder having passed while the plaintiffs’ proceedings were stayed by an order obtained by the appellants, it became necessary for the plaintiffs to apply de novo to a judge for an order for the examination, or to apply to the court for an order fixing a date for the examination pursuant to the original order of the justice. The plaintiffs pursued the latter course and the appellants insist that the. former course only was open to them, and -that the. court was without jurisdiction to make the order. The provisions of the Code of Civil Procedure to. which reference-has been made ¡plainly show that the Legislature conferred the authority to order such examination upon a jxidge and not upon the court, and they have beén authoritatively so construed. (Wiechers v. N. H. Sewing Machine Co., 38 App. Div. 1 ; Heishon v. Knickerbocker Life *763 Ins. Co., 77 N. Y. 279 .) It does not follow, however, that the court, which is vested Avith power to stay, modify and' vacate such orders,'may not give effect to an order duly made by faxing a time for the examination, where the examination at the time originally prescribed therefor could not be had owing to a stay procured by or in behalf of the party to be examined, or those opposed in-interest to the examination. It is true that the court could not initiate the examination:, but it Avould seem that the' court should have authority to render effective in such circumstances an order duly made by a judge.

It is contended that the order, in effect, constitutes an adjournment of the proceeding before the referee, and that this may not' be done, since authority to adjourn the proceeding is vested in the judge or referee before whom the examination is to be taken by virtue of the express provisions of section 876 of the Code of Civil Procedure. This argument is fallacious. Proceedings under the order having been duly stayed, neither the plaintiffs nor the officer before whom the examination Avas to be had could have" taken any step toAvard the adjournment, of the -hearing Avithout being guilty of contempt. It has been the settled practice of the court, where the time for an examination under an order has expired by reason of a stay, on vacating the stay and sustaining .the order, to fix- another time for the examination either with or without special application for the purpose, and to direct that it be had at such time pursuant to the original order. (Abb. Pr. [2d ed.] 232; Haebler v. Hub bard, 36 Misc. Rep. 642 ; Rochester Lamp Co. v. Brigham, 1 App. Div. 490 .) The opinion in Grant v. Greene (121 App. Div. 756 ), on the appeal from an order adjudging Greene in contempt for failing to obey the order now under consideration, disposes of the objection that service on the attorney Avas insufficient.

It follows that the order should be affirmed, Avith ten dollars costs and disbursements. '

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.