Lane v. Fenn — 194 N.Y. 597

Majority

p. 597

Charles M. Lane, Respondent, v. Albert O. Fenn et al., Appellants, Impleaded with Another.

Headnote

Lane v. Fenn, 129 App. Div. 931 , 937 affirmed,

(Argued February 16, 1909;

decided March 2, 1909.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 6; 1909, which affirmed an order of Special Term denying a motion to set aside an order for the examination of certain of the defendants before trial. Also appeal, by permission, from an order of said Appellate Division, entered January 27, 1909, which affirmed an order of Special Term denying a motion by defendants for judgment on the pleadings dismissing the complaint under section 547 of the Code of Civil Procedure.

The following questions were certified on the appeal from the first order :

“1. Were the moving papers upon which the order to examine was granted sufficient to justify the granting of the order within the meaning of the provisions of the Code of Civil Procedure ?

“ 2. Should the order directing the examination limit and define the scope of the examination, taking into consideration the fact that the examination is to take place before a justice of the supreme court ?

“ 3. Should the examination be confined to material allegations of the complaint which are controverted by the answers and to the subjects specifically pointed out in the affidavits \ "

The following question was certified on the appeal from the second order: “ Does the complaint state facts sufficient to constitute a cause of action ? ”

Walter S. Hubbell for appellants.

Alton B. Parker, Frank Sullivan Smith, James M. E. O'Grady and Elbridge L. Adams for respondent.

Order affirming order denying motion to vacate order for examination affirmed, with costs, and first question certified

p. 598

answered in the affirmative. The other questions not answered, as they present questions of discretion, not of law.

Order affirming order denying motion for judgment on the pleadings affirmed, with costs, and question certified answered in the affirmative; no opinion.

Concur: Cullen, Ch. J., Edward T. Bartlett, Haight, Vann, Werner, Willard Bartlett and Hiscock, JJ.