Appeal from Special Term, New York County.
Action by Emil Schweinburg against Benjamin Altman. From an order vacating an order for examination of defendant before trial, plaintiff appeals. Reversed, and motion denied.
[116 N.Y.S. 319]
Nathan Ottinger, for appellant.
S. Hanford (Henry B. Pogson, of counsel), for respondent.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
The complaint sets up a contract under which defendant was to pay plaintiff $7,500 a year, that defendant paid for five years, that he has not paid since October 1, 1906, and demands judgment for $7,500, the amount so unpaid. The answer alleges a cancellation of the contract by the defendant in accordance with the terms thereof. Plaintiff obtained an order for the examination of the defendant before trial. Defendant moved to vacate said order, which motion was granted, the learned justice stating in his memorandum:
" The examination sought relates to the defense, and not to the plaintiff's cause."
From said order the plaintiff appeals.
We are of the opinion that the order should be reversed, upon the ground that the defendant was estopped from moving to vacate the order for his examination. The original order required the defendant to appear for examination on February 16, 1909. On February 15th the following stipulation was signed by the attorneys for both parties:
[116 N.Y.S. 320] " The defendant, having requested an adjournment of his examination before trial herein, pursuant to the order of Mr. Justice Gerard, dated February 5, 1909, herein, it is hereby stipulated that the said examination shall take place on Wednesday, the 24th of February, 1909, at the same time of day and place, in lieu of February 16, 1909, the date originally set, and it shall not be necessary to serve any new subpœ na upon the defendant, but the supœ na heretofore served and the order aforesaid shall for all purposes be deemed to be related to the adjourned date specified herein."
On February 19th the said attorneys for both parties entered into a further written stipulation:
" The defendant having requested a further adjournment, *** it is hereby stipulated that the said examination shall take place on Tuesday, the 2d day of March, 1909, at the same time of day and place.*** Defendant agrees that no further adjournment will be applied for."
On the 2d of March, on attending at court to take the examination as stipulated, the plaintiff's attorney was met with a notice of motion, dated March 1st, to vacate the order for examination. This was argued before the justice sitting at Special Term, Part 2, who, in view of the fact that in the course of the argument the defendant served plaintiff's attorney with the aforesaid notice, directed that the motion should be brought on at Part 1, Special Term, and to that end signed an order to show cause at the instance of the defendant, returnable at said part.
We think that when the defendant, without any intimation of intention to attack the original order, twice requested the favor of an adjournment and twice in writing stipulated " that the said examination shall take place" on a designated day, he waived the right to move to vacate, and should not be allowed to do so. The stipulations are too clear to ...