Summary
In Osborne v. Barber (105 App. Div. 236), where the time was, as in the case at bar, four instead of five days, without the reason therefor being stated in the order, it was held that the order must be reversed.
Summary of this case from Miller v. NevinsOpinion
May, 1905.
William W. Niles and John J. Cunneen, for the appellant.
Winsor B. French, for the respondent.
Respondent first moves to dismiss the appeal on the ground that after the denial of defendant's motion to vacate the order for examination, defendant's counsel appeared upon the examination and made objections to questions asked, and also cross-examined the witness. This act is claimed to be a waiver on the part of the defendant of any right which he might otherwise have to question the denial of his motion to vacate the order for the examination. I do not so understand it. The defendant's counsel could safely have done nothing less. He objected before the referee to the taking of the deposition and cannot be held to have waived any rights which he might have to the vacating of the order for the examination by appearing upon such examination after the refusal of the Special Term to vacate the order therefor.
Upon the merits of the appeal we think that the defendant's motion to vacate the order should have been granted. Various objections were made to the order and the affidavits upon which the order was granted, one of which only it will be necessary to consider. By section 873 of the Code of Civil Procedure it is provided that "the order must also direct the time of service of a copy thereof, which must be made within the State not more than twenty nor less than five days before the time fixed for the examination, unless special circumstances making a different time of service necessary are shown in the affidavit and that fact is recited in the order." In this case the examination was directed to take place four days after the granting of the order therefor. If we can assume, for the argument, that the affidavit sufficiently shows good reason for directing the examination to be taken at some time less than five days from the granting thereof, there is no attempt to state such reason in the order for the examination as specifically required by the provision of the Code of Civil Procedure above quoted. This irregularity, if it be such, was specifically pointed out in the order to show cause upon which the order appealed from was made. Without considering the objections made to the sufficiency of the affidavits, therefore, we think the order must be reversed.
Order reversed, with ten dollars costs and disbursements, and motion to vacate the order for examination granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted, with ten dollars costs.