Plohn v. Plohn

283 A.D. 842 | N.Y. App. Div. | 1954

Appeal from an order of the Supreme Court at Special Term, entered in Schenectady County on December 31, 1953, which vacated and set aside a previous order granted by the same court on May 10, 1952, appointing Adrian P. Burke, as Referee, to hear and report on the issues in this action; and, directed that the action proceed to trial before the trial court of the Supreme Court of Saratoga County. On October 10, 1952, by order of the Supreme Court, an examination before trial of the defendant and certain records before Referee Adrian P. Btjrke was directed. This order in modified form was affirmed by this court. (281 App. Div. 1056.) Appellant does not object to the trial proceeding in Saratoga County or to vacating the order referring the matter to a Referee to hear and report. Appellant urges that the order appealed from should have contained a provision that extensive evidence taken on the examination before trial should have been ordered filed with the trial court for use upon the trial. Beyond question such evidence should not be taken a second time, but it will be unnecessary to do so as the matter now stands. The order of Mr. Justice SchiRiCK directing the examination before trial before the same Referee has not been vacated and is still in full force and effect. It appears that each party has a copy of the proceedings taken in connection therewith. The Referee was acting in a different capacity and pursuant to a different order than the one appealed from in that proceeding. The evidence adduced upon this examination before trial will be available for the use of either party upon the trial, subject to the direction of the trial court. Order affirmed, without costs. Foster, P. J., Bergan, Coon and Imrie, JJ., concur.