Opinion
November 22, 1907.
James R. Knapp, for the appellant.
Charles M. Parsons, for the respondents.
This order, so far as it allows the examination of one of the plaintiffs upon oral questions, violates section 895 of the Code of Civil Procedure. It is there expressly provided that a commission to examine wholly or partly upon oral questions cannot be issued where the witness to be examined is a party to the action, and is making the application on his own behalf, except by consent of the parties ( Ordway v. Radigan, 114 App. Div. 538) ; and the provision that the witness is to be examined "upon such oral questions at said examination as the counsel for the plaintiffs and the defendant may think proper" is, therefore, unauthorized. It seems to me, however, that the plaintiffs' proceedings were stayed in consequence of their having failed to give the security for costs required by the order of August, 1906. That order required the plaintiffs either to deposit the sum of $250 to be applied to the payment of the costs, if any, awarded against them, or, at their election, file with the clerk of the county of New York an undertaking to the defendant, with two sureties, to the effect that they would pay upon demand to the defendant all costs which might be awarded to him in the action, not exceeding $500. No such undertaking has been filed. No motion was made to vacate or modify this order. The plaintiffs filed an undertaking for $250 which was served upon the defendant, but that was not a compliance with the order of the court, and the stay was not thereby vacated. The fact that the defendant did not return the undertaking as not a compliance with the order did not waive or vacate the stay. The order was not void. It stayed the plaintiffs' proceedings until such undertaking should be filed and served; and the plaintiffs were not authorized to comply with the order of the court so far as it pleased them and disregard its other provisions and then claim, because the defendant had simply rested upon the order, its provisions were waived.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to renew the application for a commission upon written interrogatories when the order requiring security for costs is complied with.
PATTERSON, P.J., McLAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew as stated in opinion. Settle order on notice.