p. 235WIECHERS v. NEW HOME SEWING-MACH. CO. et al.(Supreme Court, Appellate Division, First Department.Headnote
Discoveby—Examination of Pasties—Jurisdiction of Court.Code Civ. Proc. § 872, requiring a judge to order the examination of a party as a witness before trial on an ex parte application supported by a certain showing, does not authorize a court, on notice and hearing, to-make súch an order.
Appeal from special term, New York county.
Action by Adolph Wiechers against the New Home Sewing-Machine Company and others. There was an order for the examination of' plaintiff before trial, and he appeals.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, PATTERSON, and O’BRIEN, JJ.Edwin R. Leavitt, for appellant.
Charles E. Mahony, for respondents.
The plaintiff appeals from an order requiring him to be examined as a witness, before trial, concerning an alleged fact which the defendant deemed it necessary to establish on the trial,, and proof of which, it claimed, it could not otherwise procure. The order is a court, and not a judge’s, order. It was made on motion to the court, brought on pursuant to a formal notice, and after hearing counsel both in support and in opposition to the motion, and was entered as a court order. The only authorized practice under section 872 of the Code of Civil Procedure, which regulates applications of' this character, is to apply ex parte to a judge, who, if the papers are sufficient, must make the order. We are aware that it has been decided that, where application is made on notice to examine a party to-an action before trial, and affidavits have been submitted on both sides, the court is in the same position in which it would have been had
p. 236an ex parte order beemfirst granted, and then a motion made on notice to vacate (Witcher v. Association [Super. N. Y.] 14 N. Y. Supp. 290 ); but the difference between an order of a judge and an order of the' court does not seem to have been considered in that case. That there is such a difference, and that the distinction is radical, has been expressly decided as to an order made under this very section (872) of the Code. In Heishon v. Insurance Co.,
77 N. Y. 278 , it was held that an order for the examination of a party, made by the court, as distinguished from a judge’s order, was made without power.
The order must be reversed, with $10 costs and disbursements. All concur.