Haebler v. Hubbard

36 Misc. 642 | City of New York Municipal Court | 1901

Delehanty, J.

On October 18, 1900, plaintiffs obtained an order, upon an ex parte application, for the examination of defendants before trial. Upon defendants’ motion, this order was thereafter vacated, whereupon plaintiffs appealed therefrom and secured a reversal thereof. It is conceded that this action revived the order of examination, and appellants now contend that all that was necessary to make it effective was an order requiring the parties to appear pursuant thereto at a time stated, the return day in the original order having lapsed. This was not done, according to the claim of appellants, but they insist that the order requiring defendants to appear for examination before trial, obtained after the entry of the reversal order referred to, was, in fact, a new order for such examination, and as it was made upon an affidavit which failed to embrace all the requirements of section 872 of the Code of Civil Procedure, the order in question was improperly granted. The court at Special Term, upon an application to vacate this last order, failed to accept defendants’ contention as stated, but, on the contrary, held that the order in question simply made effective the original order of examination, which, after having been vacated, was by the General Term reinstated. It is from this order that this appeal is taken.

We conclude the court below was correct in its determination. The order in question recited the original order of examination, and the affidavit upon which it was granted was annexed thereto and set forth the issuance of that original order, its service upon the defendants, its subsequent vacation by Special Term and reinstatement by General Term, all of which show that the order made was intended to stand upon the original order of examination. The court, in our opinion, had before it all the jurisdictional facts necessary to make the order in question, and the defendants, from the papers necessarily served upon them, full knowledge of the grounds of the application. Such being the case, the order made was correct, and should be affirmed, with costs to the respondents.

Hascall and McCarthy, JJ., concur.

Order affirmed, with costs.