Diefendorf v. Fenn
Appellate Division of the Supreme Court of the State of New York
Cross-appeals by the defendants, Albert O. Fenn and others, and by the plaintiff, Julia Diefendorf, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of February, 1908, granting a motion to vacate an order for the examination of the defendants and certain others before trial and denying the said motion as to the defendant A. 0. Fenn.
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Cross-appeals by the defendants, Albert O. Fenn and others, and by the plaintiff, Julia Diefendorf, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of February, 1908, granting a motion to vacate an order for the examination of the defendants and certain others before trial and denying the said motion as to the defendant A. 0. Fenn. The order was obtained after service of summons and before service of complaint.
1Opinion of the Court
Gaynor, J.:
The order was for the taking of the deposition of each of the defendants and of several others who are not defendants. It was vacated as to every one excepting the defendant Fenn on the affidavit of the plaintiff on which it was obtained.
1. As the right to take the deposition of parties, and that to take the deposition of persons who are not parties, depends on different facts, their examinations should not be mixed up in the same order. Section 870 of the Code of Civil Procedure provides for the examination of parties; section 871 for the examination of persons who are not…
2Cases cited3 opinions
- Glenney v. . StedwellNew York Court of Appeals · 1876
- Waitzfelder v. A. Moses Sons & Co.Appellate Division of the Supreme Court of the State of New York · 1907
- Hutchinson v. SimpsonAppellate Division of the Supreme Court of the State of New York · 1902
3Cited by10 opinions
- Kornbluth v. IsaacsAppellate Division of the Supreme Court of the State of New York · 1912
- Chartered Bank of India v. North River InsuranceAppellate Division of the Supreme Court of the State of New York · 1910
- Punia v. Dry Dock Savings BankAppellate Division of the Supreme Court of the State of New York · 1952
- Segschneider v. Waring Hat Manufacturing Co.Appellate Division of the Supreme Court of the State of New York · 1909
- St. John v. PutnamNew York Supreme Court · 1927
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