Childs v. Childs — 144 A.D. 168

Majority

p. 168

Irving W. Childs, Respondent, v. Eversley Childs, Individually and as Sole Trustee under the Last Will and Testament of William H. H. Childs, Deceased, Appellant.

(No. 2.)

First Department,

April 7, 1911.

Headnote

Motion — renewal of motion — leave of, court — discovery — examination of defendant before trial.

Where a motion to vacate ian order for the examination of a defendant before trial had been denied it cannot be renewed without leave of court.

The fact that a judgment for the defendant has been ordered upon the pleadings but with leave to the plaintiff to amend his complaint does not ipso facto vacate an order for the examination of defendant before trial, so afe to authorize the renewal of an unsuccessful motion to vacate the order for examination ¡without leave of court.

It seems, however, that sucli order for judgment with leave to amend m'ay be grounds upon which tile court in its discretion may allow a renewal of the motion. j . .

But where such amended complaint has not been answered so that no issue is raised, it is improper to order that the examination of ■ the defendant before trial probeed.

Appeal by the defendant, Eversley Childs, individually ánd as trustee, etc., from anj order of the Supreme Court, made at the New York Special Term and entered in the office .of the clerk of the county of Npw York on the-20th day. of February, 1911, denying the defendant’s motion to vacate an order

p. 169

for. his examination before trial or to dismiss and quash all proceedings thereunder and to vacate a subsequent order for his examination.

William W. Niles, for the appellant.

Edwin R. Leavitt, for the respondent.

In so far as the defendant sought to vacate the order for his examination his motion was properly denied. He had already once made that motion without success and in order to renew it he should have first obtained leave to do so. The fact that judgment had been ordered in defendant’s' favor upon the pleadings, but with leave to the plaintiff to amend his complaint, did not serve to vacate ipso facto the order for defend-' ant’s examination, although it might have furnished grounds for an appeal to the court to exercise its discretion to the extent of permitting a renewal of the motion to vacate. It was, however, inadvertent to order the examination to proceed in the then state of the case, because although the amended complaint had been served, it had not been answered and there were consequently no issues to which an examination' could be directed. The order appealed from must, therefore, be reversed in so far as it denies defendant’s motion to vacate the order of September 18, 1910, and sets a date for the examination to proceed. In so far as it denies the motion to vacate the order for examination it is affirmed, without costs to either party in this court.

, Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Order reversed to the extent stated in opinion, otherwise affirmed, without costs. Settle order on notice.