Mitchell v. Greene — 121 A.D. 677

Majority

p. 677

George Mitchell, Respondent, v. William C. Greene, Appellant.

First Department,

October 25, 1907.

Headnote

Motion and order — failure to show no previous application.

An order for examination before trial will be vacated when .the moving papers, do not show, as required by general rule 25; that no previous application for the order has been made. ...

The rule is salutaiy and intended to prevent applications to one judge for an order which has been refused by another.

Appeal by the defendant, William C. Greene, from an order of the Supreme Court, made at the blew York Special Term and. .entered in the office of the clerk of the county of blew York on the 23d day of ’July, 1907, granting the plaintiff’s motion to vacate an order for his examination, before trial. . .

M. E. Harby, for the . appellant.

Charles W. Pierson, for the respondent.

While we do not wholly agree with the court below as to the grounds for the vacation of the order for plaintiff’s exainination, we think the order must be affirmed upon the ground that the original papers upon which the order for the examination was obtained, did not state that no previous application for the order had been made as required by rule 25 of the General Rules of Practice. That rule is most salutary, and its enforcement is necessary for the protection of the court to prevent applications made to one judge after the same application has been made to. and refused by another judge. The objection was seasonably taken by the plaintiff, and as this rule was intended to be enforced, a violation of it without excuse justified the court below in vacating the order..

For this reason the order appealed, from must.be affirmed, with ten dollars costs and disbursements.

Patterson, P,- J., Laughlin, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten' dollars costs and disbursements,