Majority
p. 813Axel W. Hallenborg, Appellant, v. William C. Greene, and Greene Consolidated Copper Company, Respondents, Impleaded with Cobre Grande Copper Company and Others, Defendants. First Department, July 15, 1907.
Headnote
Practice — examination under section 870 of the Code of Civil Procedure.An ex parte order for an examination of a defendant pursuant to section 870 of the Code of Civil Procedure should not he vacated merely because the action was on trial before a referee, for said section expressly authorizes an examination during trial.
Appeal by the plaintiff, Axel W.„IIallenborg, from an order of the Supreme Court, made at the New York Special Term and entered in the office' of the clerk of the county of New York on the 15th day of March, 1907, vacating a prior ex parte order directing the examination of William C. Greene and the Greene Consolidated Copper Company during the trial of the action.
Edward L. Blackman, for the appellant.
M. E. Harby, for the respondents.
There does not appear to have been any serious question that.the facts justified the ex parte order for the examination of the defendants, 'respondents; the order vacating such order was made upon the single ground, stated in the opinion of the court at Special
p. 814
Term, that “ this action is now pending before a refel’eé, mid, therefore, the order herein for the examination of the defendant Grreene is unnecessary.” Section 870 of the Code of Civil Procedure specially provides that an •examination of this character “may be taken at his own instance or at the instance of an adverse party or by a co-plaintiff or co-defendant at any time before nr during the trial, as prescribed in this article.” The fact that, the case is actually on trial does not make any- difference; the rule of the Code is positive, and the original order, being proper upon the facts before the court, should not have been vacated. (Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526 , 528; McKeand v. Locke, 115 id. 174.)
The order appealed from should be, reversed, with ten dollars • costs and disbursements, and the older f.or examination of defendant should he: reinstated, and the motion to. vacate denied, with ten ■dollars costs. .
Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.
. Order reversed,'with ten dollars costs-and disbursements, and motion denied, with ten dollars costs. ' '