Opinion
April 23, 1953.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, BISSELL, J.
Bernard L. Seligman for appellants.
Samuel Robert Weltz and Milton B. Franklin for respondent.
Examinations before trial in summary proceedings are contrary to the spirit and intent of the Legislature in providing the summary remedy ( Dubowsky v. Goldsmith, 202 A.D. 818).
The court had no jurisdiction to stay the summary proceedings before final order (Civ. Prac. Act, § 1446).
The order should be reversed, with $10 costs, motion denied and stay vacated.
SCHREIBER and HECHT, JJ., concur in Per Curiam memorandum; HOFSTADTER, J., concurs in result solely on ground that in the particular circumstances of this case it was an abuse of discretion to grant order for examination; I do not regard the Dubowsky case as persuasive, nor, of course, is it controlling — and in this view, in a proper case, the court would have jurisdiction to order an examination and, pending its completion, order a stay.
Order reversed, etc.