Mary C. Hamilton, Resp’t, v. Alexander B. Hudson, App’lt.(Supreme Court, General Term, Second Department,Headnote
1. Practice—Right to examination of opposite party before trial not basolute—Code Crv. Pro., § 873.The right to examine the opposite parly before trial is not absolute; it depends on the ability of the moving party to show the necessity therefor. The order granted ex parte is not conclusive that such necessity has been shown, The party opposing has a right to be heard, and if upon such hearing it is made to appear that the supposed necessity does not exist, the order originally granted maybe vacated.
2. Same—Who can entertain motion to vacate.
It is not obligatory that the motion to vacate be made to the judge who granted the original order. Another may entertain it.
Appeal from an order of Mr. Justice Dykman, vacating an order for the examination of the plaintiff, pursuant to Code Civ. Pro., § 873.
The defendant, Hudson, obtained an order for the examination of plaintiff, from the county judge, returnable before the county judge. The order of the county judge directed a stay of all proceedings on the part of the" plaintiff, until the hearing and determination of its order. On the return day of the order, defendant’s counsel appeared before the county judge prepared to proceed with the ex-ination, when the plaintiff obtained and served on him an order from Hon. J. 0. Dykman, judge of the supreme court, returnable before the supreme court one week later, why the order of Isaac H. Mills, Esq., the county judge, should not be vacated and set aside, and containing a stay on the defendant, but not vacating the stay of the defendant on the plaintiff. At the hearing before Judge Dykman, defendant’s counsel raised the question of jurisdiction, which was overruled by him and argument ordered to be heard before him.
Cornelius E. Kene, for resp’t; Charles H. Young, for app’lt.
The right to examine the opposite party before trial is not absolute; it depends on the ability of the moving party to show the necessity therefor. And the order as granted ex parte is not conclusive that such neces sity has been shown.
The party opposing has a right to be heard, and if upon such hearing it is made to appear that the supposed necessity does not exist, the order originally granted may be vacated.
Ordinarily the motion to vacate will be made to the officer who granted the original order, who may be presumed to be eager to correct any error into which he may have fallen. But it is not obligatory that the motion be made to him; another may entertain it.
We are, therefore, of opinion that the order appealed from is not erroneous, as being without jurisdiction.
On the merits we think the order was correct. The false representations as to which the applicant wished to enquire, were set out in the pleadings. If not so set out they could not be proved. Read v. Clarks Cove Guano Co., 14 N. Y. State Rep., 560.
The alleged defects in the house, concerning which the applicant desired to enquire, could be more appropriately learned^ by moving for a bill of particulars, or that the complaint be made more definite and certain, which are the usual and ordinary methods of obtaining such precise knowledge of the opposing party’s claim as will enable one to meet it upon the trial.
We think the appellant mistook his remedy and that the order appealed from should be affirmed with costs.
Barnard, P. J., concurs; Dykman, J., not sitting.