
    Adolph Wiechers, Appellant, v. New Home Sewing Machine Company and Henry D. Carey, Respondents.
    
      Examination of a witness before trial — the order therefor must be a judge?s arder,
    
    The Supreme Court has no power to make a court order for the examination of the plaintiff in-an action as a witness before trial, upon a contested motion, brought on to be heard pursuant to a formal notice thereof. The proper practice, under section 878 of the Code of Civil Procedure, regulating applications of this character, is to apply ex parle to a judge who, if the papers are sufficient, must make the order.
    Appeal by the plaintiff, Adolph Wiechers, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of August, 1898, granting the defendants’ motion to examine the plaintiff before trial.
    
      Edwin R. Leavitt, for the appellant.
    
      Charles E. Mahony, for the respondents.
   Patterson, J.:

The plaintiff appeals from an order requiring him to be examined as a witness before trial concerning an alleged fact which the defendant deemed it necessary to establish on the trial, and proof of which, it claimed, it could not otherwise procure. The order is a court and not a judge’s order. " It was made on motion to the court, brought on pursuant to a formal notice and after hearing counsel both in support of and in opposition to the motion, and was entered as a court order. The only authorized practice under section 873 of the Code of Civil Procedure, which regulates applications of this character, is to apply ex parte to a judge, who, if the papers are sufficient, must make the order. We are aware that it has been decided that where application is made on notice to examine a party to an action before trial, and affidavits have been submitted on both sides, the court is in the same position in which it would have been had an ex pa/rte order been first granted and a motion then made on notice to vacate (Witcher v.. Tribune Assn., 20 Civ. Proc. Rep. 283); but the difference between an order of a judge and an order of the court does not seem to have been considered in that case. That there is such a difference, and that the distinction is radical, has been expressly ■ decided' as to an order made under this very section (873) of the Code of Civil Procedure. In Heishon v. Knickerbocker Life Ins. Co. (77 N. Y. 278) it was held that an order for the examination of a party made by the court, as distinguished from a judge’s order, was made-without power. •

The order must be reversed, with ten dollars costs and disbursements.

Van Brunt, P. J.,. Barrett, Rumsey and O’Brien, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  