Levy v. Loeb
The Superior Court of New York City
Appeal from order denying defendant’s motion to vacate an order for the examination of several of the defendants after service of summons and complaint, and before issue joined. 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.
1Opinion of the Court
By the Court.—Freed max, 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 issxie 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 the World Mutual Life Ins. Co., 40 N. Y. Superior Court R. [8 J. & S.] 92).
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2Cases cited4 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
- Winston v. EnglishThe Superior Court of New York City · 1873