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SECTION OF THE CODE OF PROCEDURE CITED.

PAGE

Code of Procedure, S 118...

168

SECTIONS OF THE CODE OF CIVIL PROCEDURE CITED.

PAGE.

362

$ 1316 ...

PAGE. Code C. P. $ 319.. 31 Code C. P. § 873

2 § 365.. .170, 171 $ 933

162 § 368. 170, 171 $ 937

162 $ 370...

133
$ 1002

109
§ 421.
69, 70

$ 1274.

33, 36, 37 § 447.

338 $ 451

114
$ 1496.

173 $ 452 ..

536
$ 1500.

167-170 SS 458-467

314
$ 1780.

61, 391 § 473

250
$ 1876...

318, 319 $ 481

36
$ 1877

126 § 483

175
$ 2038

113
$ 501
550, 551
$ 2076

414 § 503

569

$ 2374, subd. 4.. 579 § 520

69
$ 2521 .

530 $ 522

162
$ 2726

322 $ 534

36
$ 2727

321 § 713, subd. 1

126
$ 2730.

475, 476 § 723

582
$ 2737.

476, 477 § 829

142, 143, 432

SECTIONS OF THE CODE OF CRIMINAL PROCEDURE

CITED.

PAGE

PAGE.

Code Crim. Proc. SS 148, 149.. 275, 282 Code Crim. Proc. SS 151, 152...... 278

275

$ 150.

SECTIONS OF THE PENAL CODE CITED.

PAGE

PAGE.

279, 280

Penal Code, $ 96. ...

$ 639.

275, 280 Penal Code, $ 654 .
279, 280

RULE CITED.

PAGE.

General Rules of Practice, 49..

251, 253

Cases

DETERMINED IN THE

FIRST DEPARTMENT

IN THE

APPELLATE DIVISION,

February, 1899.*

ADOLPH WIECHERS, Appellant, v. New HOME SEWING MACHINE

CUMPANY and HENRY D. CAREY, Respondents.

Examination of a witness before trial the order therefor must be a judge's order.

The Supreme Court has no power to make a court order for the examination of

the plaintiff in an action as a witness before trial, upon a contested motion, brought on to be heard pursuant to a formal notice thereof. The proper practice, under section 873 of the Code of Civil Procedure, regulating applications of this character, is to apply er parte to a judge who, if the papers are suffi. cient, must make the order.

APPEAL by the plaintiff, Adolph Wiechers, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of August, 1898, granting the defendants' motion to exainine the plaintiff before trial.

Edwin R. Leavitt, for the appellant.

Charles E. Mahony, for the respondents.

PATTERSON, J.:

The plaintiff appeals from an order requiring him to be examined as a witness before trial concerning an alleged fact which the defendant deemed it necessary to establish on the trial, and proof of which, it claimed, it could not otherwise procure. The order is * The other cases of this term will be found in volume 37 App. Div.-[REP.

APP. Div.- Vol. XXXVIII. 1

FIRST DEPARTMENT, FEBRUARY TERM, 1899.

(Vol. 38.

a court and not a judge's order. It was made on motion to the court, brought on pursuant to a formal notice and after hearing counsel both in support of and in opposition to the motion, and was entered as a court order. The only authorized practice under section 873 of the Code of Civil Procedure, which regulates applications of this character, is to apply ex parte to a judge, who, if the papers are sufficient, must make the order. We are aware that it has been decided that where application is made on notice to examine a party to an action before trial, and affidavits have been submitted on both sides, the court is in the same position in which it would have been had an ex parte order been first granted and a motion then inade on notice to vacate (Witcher v. Tribune Assn., 20 Civ. Proc. Rep. 283); but the difference between an order of a judge and an order of the court does not seem to have been considered in that case. That there is such a difference, and that the distinction is radical, has been expressly decided as to an order made under this

very section (873) of the Code of Civil Procedure. In Heishon v. Knickerbocker Life Ins. Co. (77 N. Y. 278) it was held that an order for the examination of a party made by the court, as distinguished from a judge's order, was made without power.

The order must be reversed, with ten dollars costs and disbursements.

VAN BRUNT, P. J., BARRETT, RUMSEY and O'BRIEN, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.

First National Bank of the City of Brooklyn, Appellant, v. Alex

ANDER WRIGHT, Defendant, Impleaded with ANNIE E. NELSON and ISABELLA E. Reilly, Respondents.

Defect of parties in a creditor's suit the death of the judgment debtor does not pre

vent the hearing of a demurrer alleging it.

Where, in a creditor's suit, demurrers are interposed on the ground that there is

a defect of parties, in that the immediate grantee of the judgment debtor – by whom the property in question was conveyed to the judgment debtor's wife (since deceased), whose two children and the judgment debtor are made parties

App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1899.

defendant was a proper and necessary party to the action, the case should not be stricken from the calendar because of the death of the judgment debtor, where the demurrers are separate, the issues raised between the demurring children of the deceased wife and the plaintiff being such as could be disposed of irrespective of the presence or absence in the action of the judgment debtor.

APPEAL by the plaintiff, the First National Bank of the city of Brooklyn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1898, striking the case from the calendar.

The action was brought by a judgment creditor to set aside a conveyance of certain property made by Alexander Wright, the judgment debtor, to one James McKinley, by whom it had been conveyed to Eliza A. Wright (the wife of the judgment debtor), who had left two children who, with Alexander Wright, were made parties defendant.

The defendants demurred to the complaint “on the ground that it appears on the face of the complaint that there is a defect of parties defendant, in that the plaintiff has not made James McKinley and Agnes McKinley, who are proper and necessary parties to the cause of action alleged in said complaint, parties defendant herein."

Ira Leo Bamberger, for the appellant:

Alfred Ely, for the respondents. PATTERSON, J.:

The order striking this case from the calendar of the court must be reversed. The cause was upon the Special Term calendar on the 17th of November, 1898. Issues of law raised by demurrer were involved. It was a creditor's action brought against Alexander Wright and Annie E. Nelson, who had jointly and severally demurred to the complaint, and Isabella E. Reilly, who had separately demurred, the ground of each demurrer being the same. It was alleged in the complaint that Alexander Wright, the judgment debtor, had been the owner of the real estate described in the . complaint; that he had conveyed it to one James McKinley without consideration and frandulently ; that McKinley conveyed it without consideration to Eliza A. Wriglit, the wife of Alexander Wright;

FIRST DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38.

that Alexander Wright had continuously remained in possession and apparent ownership and enjoyment of the property ; that prior to the commencement of the action Eliza Wright died intestate, leaving her surviving her husband, Alexander Wright, and two children, namely, Annie E. Nelson and Isabella E. Reilly. The demurrers were upon the ground that it appeared upon the face of complaint that there was a defect of parties, consisting in the nonjoinder of James McKinley and his wife. It is recited in the order appealed from that the cause had been on the day calendar of the the Special Term, and adjourned from time to time until the day first above mentioned, when it was suggested that Alexander Wright had died in July, 1888; and thereupon, on motion, the cause was stricken, not only from the day calendar, but as the order may be interpreted, from the general calendar of the court.

As the demurrers of the defendants Nelson and Reilly were separate and raised issues between those parties and the plaintiff, which could be disposed of irrespective of the presence or absence of Wright in the suit, the order was erroneous. Those separate demurrers simply went to the proper constitution of the suit as against the demurrants. The subject of the power to render a judgment upon the merits of the case without the heirs or personal representatives of Alexander Wright being before the court, was not involved. Wright's conveyance, even if fraudulent as to creditors, was good as against himself. The title having been conveyed by McKinley to Mrs. Wright, and she having died intestate, it would seem that Alexander Wright's relation to the property was only that of a tenant by the curtesy in possession, which tenancy, of course, would cease with his death. On the naked allegations of the complaint, therefore, there was no reason why the issues of law on the separate demurrers should not have been heard and disposed of when the case was called on the day calendar.

The order must be reversed, with costs, and the case restored to the calendar.

VAN Brunt, P. J., BARRETT, RUMSEY and O'Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the case restored to the calendar.

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