R. A. Schoenberg & Co. v. Loftus

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. [1118] 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.