RICHARDSON v. McCREERY

RICHARDSON v. McCREERY. N. Y. Supreme Court, First Department; Chambers, December, 1876; January, 1877. Examination of Party before Trial. While a trial is pending and proceeding hefóre a referee the court will not allow the examination of a party under section 391 of the Code. This action was brought for professional fees, was referred, and the trial commenced before the referee, when plaintiff obtained ex parte an order for examination of defendant before trial under section 391 of the Code. Defendant thereupon obtained an order to show cause why it should not be set aside. Before it was heard plaintiff’s motion for a stay was heard. Davis, P. J.—The trial is pending and proceeding before the referee. The court will not stay such trial for the purpose of examining a party upon order out of court. Motion denied. The order to show cause was then heard. Dunning, Edsal, & Hart, for the motion. John A. Foster, opposed. [MAJORITY — Donohue, J.] Donohue, J. The court has such power over its process as to prevent its being oppressive. The examination of defendant out of court while the reference is pending would be oppressive. Order vacated.