Depierris v. Slaven — 81 N.Y. Sup. Ct. 628

Majority

p. 628

Maud Eva Slaven Depierris, Appellant and Respondent, v. Henry B. Slaven and Another, as Executors, etc., and Others, Respondents and Appellants.

Headnote

Order'for examination before trial — defective affidavit.

[t is a fatal objection to an order for examination before trial, granted on the application of the plaintiff in a pending action, that the papers on which the order was made failed to set forth either the residence or office address of the plaintiff’s attorney.

Such an omission constitutes a failure to comply with the requirement of subdivision 1 of section 872 of the Code of Civil Procedure, that the affidavit for such an order shall, if either of the parties to the action has appeared by attorney, set forth the residence or office address of the attorney.

p. 629

Appeal by the defendants, Henry B. Slaven and Ellen A. Slaven, from so much of an order made at Special Term, and entered in the office of the clerk of the city and county of New York on the 1st day of November, 1893, as denied their motion to vacate as to their examination an order theretofore obtained by the plaintiff for the examination of them and certain others (not parties to the action) before trial; and also an appeal by the plaintiff, Maud Eva Slaven Depierris, from so much of the same order as vacated the order theretofore obtained by her for the examination of certain persons not parties to the action.

The affidavits upon which the order for the examination was made stated that the defendants had appeared in the action, and set forth the names and office and post-office address of the defendants’ attorneys, but failed to show either the residence or post-office address of the plaintiff’s attorneys.

Section 872 of the Code of Civil Procedure provides that: “ The person desiring to take a deposition, as prescribed in this article, may present to a judge of the court in which the action is pending, * * * an affidavit setting forth as follows :

“ The names and residences of all the parties to the action, and whether or not they have appeared, and, if either of them has appeared by attorney, the name and the residence or office address of the attorney. ' * * * ”

G. H. Adams, for the plaintiff.

A. H. Joline, for the 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 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 has leave to renew her application for examination of defendants.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ.

So ordered.