Majority
p. 903Joseph F. Eastmond, Appellant and Respondent, v. Roy H. McNaught, Respondent and Appellant, and Another, Defendant.
Defendants’ motion for a new trial, disclosing the methods by which Clarke’s deposition before trial was obtained, established that its admission had been clearly error, since he was in no sense an adverse party. Therefore, a new trial was a matter of right, the granting of which should be without conditions. Order of August 7, 1913, modified accordingly, so as to grant defendants’ motion, without terms, with costs of this appeal. Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.