R. A. SCHOENBERG & CO. v. LOFTUS

R. A. SCHOENBERG & CO. v. LOFTUS. (Supreme Court, Appellate Term. January 7, 1904.) 1. Examination on Defendant before Triad—Motion to Vacate Order. A defendant who, without objection, had been sworn and submitted to examination before trial, thereby waived the right to move to vacate the order for the examination. 2. Same. Under General Rules of Practice, No. 37, which requires a motion to vacate án order for irregularity to state the grounds of irregularity, an order to vacate an order for the examination of defendant before trial was erroneously granted where it does not appear from the record that any defect in the papers on which the order was made was pointed out, or that any irregularity was indicated. f 1. See Discovery, vol. 16, Cent. Dig. § 75. Appeal from City Court of New York, Special Term. Action by R. A. Schoenberg & Co. against William C. Loftus. From an order vacating an order for the examination of defendant before trial, plaintiff appeals. Reversed, and the motion to vacate the order for examination denied. Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ. W. F. Severance, for plaintiff. S. M. Haye, for defendant. [MAJORITY — PER CURIAM.] PER CURIAM. Defendant had appeared in person and by counsel, and submitted to examination, and had answered certain questions. Some questions were objected to, and the examination was adjourned in order that the parties might go before a justice of the court sitting in chambers to obtain rulings upon the objections. On appearing before a justice in chambers, an oral motion was made by defendant’s attorney to vacate the order. The motion was heard and granted, over the objection of plaintiff’s counsel. We think it was error for the court to entertain the motion, for the reason that defendant, without objection, had been sworn and had submitted to examination, and thereby waived the right to make the motion. Moreover, it does not appear from the record that any defect in the papers upon which the order was made was pointed out, or that any irregularity was indicated. Under the circumstances, the motion was erroneously granted. Rule 37, General Rules of Practice; German-American Bank v. Dorthy, 39 App. Div. 166, 57 N. Y. Supp. 172. The order appealed from is reversed, with $10 costs and disbursements to appellant, and the motion made by defendant to vacate the order of examination is denied.