Opinion
June, 1906.
Abraham Oberstein, for appellants.
Emanuel I. Silberstein, for respondent.
Upon an affidavit made by the defendant's attorney, an order to show cause was granted asking for an order "examining the plaintiffs and such books of account, order slips and memoranda as may be necessary to aid the defendant in knowing the amount of orders and the amount of the renewals on which said sums and amounts of money the defendant is entitled to commissions * * * to enable the defendant to properly draw, prepare and frame its answer." This order was returnable at a Special Term of the City Court. The plaintiffs appeared and set forth their objections in an affidavit, calling attention to the dual form of the application in that the application, if made under sections 870 and 872 of the Code, must be made to a judge (Heishon v. Knickerbocker Life Ins. Co., 77 N.Y. 278); and that, if made under section 803 of the Code, such application must be made by petition and not upon affidavits (Bloodgood v. Slayback, 62 A.D. 315) ; but the motion was granted and two orders were entered, from both of which orders the plaintiffs appeal. These orders fall exactly within the case above quoted and, for that reason alone, must be reversed. The other reasons urged by the appellants need not be considered.
McCALL, J., concurs; LEVENTRITT, J., concurs in result.
Orders reversed, with ten dollars costs and disbursements.