Berkowitz v. Bauman — 143 N.Y.S. 1106

Majority

p. 1106

BERKOWITZ v. BAUMAN et al.

(Supreme Court, Appellate Term, First Department.

November 10, 1913.)

Headnote

Appeal from City Court of New York, Special Term. Action by Wolf Berkowitz against Joseph Bauman and Samuel Bauman, doing business as J. Bauman & Bro. and J. & S. Bauman, Incorporated. From an order vacating an order for the examination of plaintiff before trial, defendants appeal. Order reversed. Nadal, Jones & Mow-ton, of New York City (Bernard G. Barton, of New York City, of counsel), for appellants. Lester M. Friedman, of New York City, for respondent.

We think that, under a fair construction of the stipulation entered into between the parties, the plaintiff waived the right to move to vacate the order for his examination. Schweinburg v. Altman, 131 App. Div. 795 , 116 N. Y. Supp. 318 . The order is therefore reversed, with $10 costs and disbursements, and motion denied.