Opinion
May 19, 1911.
Edmund F. Harding, for the appellant.
Terence J. McManus, for the respondent.
Present — INGRAHAM, P.J., CLARKE, SCOTT, MILLER and DOWLING, JJ.
Appeal from order vacating order of examination of defendant by two of its officers.
The order for examination was made on October 20, 1910, and was served on defendant, but it was found impossible to procure the attendance of the officers to be examined because plaintiff did not know where to find them. Defendant's attorneys declined to accept service on behalf of said officers, or to produce them for examination, or to disclose their addresses, except to say that one of them was in Plainfield, N.J. Under these circumstances an order was made staying all proceedings on the part of defendant pending the production and examination of said officers. This order was made on notice and was in full force and effect when the motion to vacate the order of examination was made. That motion was certainly a proceeding in the action, and as such was forbidden to be taken. On this ground alone, without considering any other question (upon which we express no opinion), the motion to vacate should not have been entertained.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.