Cockey v. Hurd
The Superior Court of New York City
Order to show cause why an order should not be vacated. Elizabeth A. Cockey and others brought this action against Frederick FT. Hurd; and after issue joined, defendant moved for leave to serve an amended and supplemental answer. Pending the motion, plaintiff obtained an order under section 401 . of the Code of Procedure (subd. 7), appointing a referee to take the affidavit or deposition of the defendant, to be used in opposition to such motion.
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Order to show cause why an order should not be vacated. Elizabeth A. Cockey and others brought this action against Frederick FT. Hurd; and after issue joined, defendant moved for leave to serve an amended and supplemental answer. Pending the motion, plaintiff obtained an order under section 401 . of the Code of Procedure (subd. 7), appointing a referee to take the affidavit or deposition of the defendant, to be used in opposition to such motion. Thereupon defendant obtained an order requiring plaintiff to show cause why the order of reference should not be vacated.
1Opinion of the CourtCurtis, J.
This is an application on the part of the defendant to set aside an order of reference granted herein, to take defendant" s affidavit, under section 401 of the Code of Procedure. The Code provides, that where any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may,' by order, appoint a referee to take the affidavit or deposition of such person.
It is urged by the defendant that the words any *309■person, in subdivision 7 of section 401, do not embrace the…
2Cited by1 opinion
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