Opinion
February Term, 1899.
Edwin R. Leavitt, for the appellant.
Charles E. Mahony, for the 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 of and in opposition to the motion, and was entered as a court order. The only authorized practice under section 873 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 an ex parte order been first granted and a motion then made on notice to vacate ( Witcher v. Tribune Assn., 20 Civ. Proc. Rep. 283); 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 (873) of the Code of Civil Procedure. In Heishon v. Knickerbocker Life Ins. 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 ten dollars costs and disbursements.
VAN BRUNT, P.J., BARRETT, RUMSEY and O'BRIEN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements.