Berdell v. . Berdell
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the second judicial department, made the second Monday of February, 1881, which affirmed an order of Special Term, denying a motion on the part of defendant to vacate an ex parte order, made by a county judge, requiring said defendant to appear before a referee named, and submit to an examination herein before trial.
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Appeal from order of the General Term of the Supreme Court, in the second judicial department, made the second Monday of February, 1881, which affirmed an order of Special Term, denying a motion on the part of defendant to vacate an ex parte order, made by a county judge, requiring said defendant to appear before a referee named, and submit to an examination herein before trial. The order for the defendant’s examination should have been made returnable before the judge granting it, and not before a referee. (Code of Civil Procedure, § 873.) The order affects a substantial right, was not…
1Opinion of the CourtEarl, J.
This action was brought for the wrongful conversion of personal property, and .was at issue upon the complaint and answer. The plaintiff, upon an affidavit, conceded to be sufficient, applied ex parte to a judge of the Supreme Court to have the deposition of the defendant taken before the trial, under sections 870, 872, 873 of the Code. The judge thereupon made an order that the defendant should be examined on oath, and her deposition taken pursuant to section 873 of the Code, and-that for that purpose she should appear before George W. Powers, a referee appointed to take such deposition.…
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