Depierris v. Slaven — 26 N.Y.S. 970

Majority

p. 970

DEPIERRIS v. SLAVEN et al.

(Supreme Court, General Term, First Department.

December 15, 1893.)

Headnote

. Examination of Party before Trial—Affidavit.

An order for tbe examination of a party before the trial will be denied1 where the moving affidavit does not state the residence and office address of plaintiff’s attorney, as required by Code Civil Proc. § 872, siibd. 1..

Appeal from special term, Hew York county.

Action- by Maud E. S. Depierris against Henry B. Slaven and others. From so much of an order as denied a motion to vacate am order theretofore obtained by plaintiff, for the examination of defendants before trial, defendants appeal; and from so much of the-order as vacated the order for the examination of certain persons,, not parties to the action, plaintiff appeals. Reversed on defendants’ appeal.

Affirmed on plaintiff’s appeal.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

G. H. Adams, for plaintiff.

A. H. Joline, for defendants.

The objection that the papers upon which the-' order for examination was granted did not comply with subdivision. 1 of section 872 of the Code^[1] seems to be fatal to this proceeding. The order denying the motion to vacate the order for examination-should be reversed, with costs, and the order vacating the examination as to persons not parties to the action should be affirmed; upon-payment of which costs, the plaintiff to have leave to renew her application for examination of defendants.

1 Subdivision 1 of section 872 provides that the affidavits upon which the-application is made shall set forth “the names and residences of all the-parties to the action, and whether or net they have appeared; and, if" either of them has appeared by attorney, the name and the residence or-office address of the attorney.”