Majority
p. 923Mary Whalen and Ellen Whalen, as Administratrices, etc., of Peter Quirk, Deceased, Respondents, v. The New York, New Haven and Hartford Railroad Company, Appellant.
Order affirmed, with ten dollars costs and disbursements. Rule 36 of the G-eneral Rules of Practice is, by its express terms, applicable only after an issue of fact has been joined. Section 480 of the Code of Civil Procedure states the proper remedy. It is within the legitimate discretion of the Special Term to deny, upon the terms prescribed in the order, a motion made under that section. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.