Levy v. Loeb
The Superior Court of New York City
Appeal by defendants from an order denying a motion to vacate an order for the examination of several of the defendants after service of summons and complaint and before issue joined. The action was by David Levy and others against Solomon Loeb and others. The motion was founded on affidavit, and it was denied solely on the ground that the Code of Civil Procedure gives an absolute right to such examination, or in other words, that there is no power to vacate the order.
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Appeal by defendants from an order denying a motion to vacate an order for the examination of several of the defendants after service of summons and complaint and before issue joined. The action was by David Levy and others against Solomon Loeb and others. The motion was founded on affidavit, and it was denied solely on the ground that the Code of Civil Procedure gives an absolute right to such examination, or in other words, that there is no power to vacate the order. The other facts sufficiently appear in the opinion. Thereupon the defendant appealed.
1Opinion of the Court
By the Court. — Feeedman, J. —
Prior to the recent revision of the statutes, this court had steadily adhered to the view that the right of a party to an action to examine the adverse party did not, under the code as it then stood, arise after issue joined, but that it existed from the time of the commencement of the action (McVickar v. Greenleaf, 4 Robt. 657 ; Fullerton v. Gaylord, 7 Id. 551; Duffy v. Lynch, 36 How. Pr. 509); and that this right could not be abrogated by rule (Glenney v. Stedwell and World Mut. Life Ins. Co., 40 N. Y. Super. Ct. [8 J. & S.] 92; 1 Abb. N. C. 327).
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2Cases cited5 opinions
- Durousseau v. United StatesSupreme Court of the United States · 1810
- Glenney v. . StedwellNew York Court of Appeals · 1876
- Duffy v. LynchThe Superior Court of New York City · 1869
- Glenney v. StedwellNew York Court of Appeals · 1876
- Winston v. EnglishThe Superior Court of New York City · 1873
3Cited by5 opinions
- Serven v. Lowerre, New York County Courts1893
- William Skinner Manufacturing Co. v. FagensonAppellate Terms of the Supreme Court of New York · 1902
- Emmerich v. HefferanNew York Supreme Court · 1884
- Fluchtwanger v. DessarNew York Supreme Court · 1889
- In re the Estate of GilmanNew York Supreme Court · 1887