
    James B. Regan, Respondent, v. The Gorham Company, Appellant.
    First Department,
    December 24, 1908.
    Discovery — examination of party before trial — renewal of motion.
    Where an order for the examination of a party before trial has been vacated because it contains an improper order for the production of books, papers and silverware, the moving party, having acquiesced therein without appeal, may move for a proper order on new papers without obtaining leave to renew.
    One presenting facts warranting such an examination is entitled thereto as a matter of right.
    
      Appeal by the defendant, The Gorham Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of July, 1908, vacating an order requiring the plaintiff to appear before a referee and submit to an examination before trial.
    
      Don R. Almiy of counsel [Olney & Comstock, attorneys], for the appellant.
    
      Cornelius J. Earley of counsel [Edwin V. Guinan with him on the brief], for the respondent.
   Clarke, J.:

This is an action to recover damages alleged to have' been sustained by the plaintiff by reason of the breach of a warranty in the quality of certain silverware sold by the defendant to the plaintiff. On or about April 23, 1908, defendant obtained an order for examination of the plaintiff under the provisions of sections 8J0 et seq. of the Code of Civil Procedure. Said order contained provisions requiring the plaintiff to produce upon such examination all bills, state ments, letters, receipts or other papers, or memoranda of any kind and nature whatsoever relating to the matters in question in its possession, and the silverware in question herein.

A motion was thereafter made, upon an order to show cause, to vacate and set aside said order, which motion was granted and an order to that effect made and entered on the 3d day of June, 1908. Said order did not set forth the reasons therefor, nor did it appear to he made upon the merits. It is quite obvious that a sufficient reason for setting aside the original order of April 23, 1908, was that it coupled a requirement for the production of books, papers and silverware with an order for examination, which this court has held to be improper.

The defendant, realizing that the vacating order of June third was proper, and would undoubtedly be affirmed upon appeal, acquiesced therein and subsequently, upon other papers, made a new application for an order for examination and obtained a proper order from the Special Term dated June 4, 1908. The plaintiff moved to vacate that order, which motion was granted by an order dated July 23, 1908, which is the order appealed from.

The learned court making said order stated in its memorandum upon the granting thereof: The motion to set aside the order of examination must be granted for the reason that a previous order was vacated * * * without leave to renew having been granted.”

We do not find that the sufficiency of the papers or the merit of the application for an examination of the plaintiff had been passed upon by the Special Term upon the vacation of either of the orders providing for said examination. We think that facts are presented fully warranting such examination and that the defendant is entitled thereto as matter of right. Section 873 of the Code of Civil Procedure provides that the judge to whom such an affidavit, as is provided for in section 872, is presented must grant an order for the examination if an action is pending.”

We do not understand that where an improper order has been vacated and set aside, and the moving party acquiesces therein, instead of taking an idle and vexatious appeal, presents new papers and obtains a proper order in a proceeding where he is entitled to it as matter of right, and not of favor, he is obliged to obtain leave therefor.

Upon the record before us we are satisfied that the order appealed from should be reversed, with ten dollars costs and disbursements, and the order thereby reversed reinstated. Date for examination to be fixed in order to be entered herein.

Ingraham, Lahghlin, Houghton and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order thereby reversed reinstated; date for examination to be fixed in order to be entered hereon. Settle order on notice.  