Majority
p. 449(121 App. Div. 677.) MITCHELL v. GREENE. (Supreme Court, Appellate Division, First Department. October 25, 1907.) Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and HOUGHTON, JJ.
Headnote
Discovery—Examination Before Trial—Application.Where the affidavits on which an order for the examination of plaintiff before trial was obtained did not state that no previous application for such an order had been made, as required by the express provisions of rule 25 of the general rules of practice, the order was properly vacated. [Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Discovery, § 75.]
Appeal from Special Term.
Action by George Mitchell against William C. Greene. From an order vacating an order for examination of plaintiff before trial, defendant appeals. Affirmed.
M. E. Harby, for appellant.
Charles W. Pierson, for respondent.
While we do not wholly agree with the court below as to the grounds for the vacation of the order for plaintiff’s
p. 450
examination, 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 $10 costs and disbursements. All concur.