
    (120 App. Div. 813)
    HALLENBERG v. GREENE et al.
    (Supreme Court, .Appellate Division, First Department.
    July 15, 1907.)
    Depositions—Statutory Provisions—Reference.
    In view of Code Oiv. Proc. § 870, providing that the deposition of a party to an action pending in a court of record may be taken at his own instance, or at the instance of an adverse party,' or by a coplaintifE or co-defendant, at any time before or during the trial, where an ex parte order 1 for the examination of a defendant in a pending action does not appear to have been without jurisdiction, it should not be vacated merely because the trial was then pending before a referee.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 1G, Depositions, § 20.]
    Appeal from Special Term.
    Action by Axel W. Hallenberg against William G. Greene and others. From an order vacating an ex parte order for the examination of a defendant, plaintiff appeals.
    Reversed.
    See 84 N. Y. Supp. 319, 87 App. Div. 259.
    Argued before INGRAHAM, McLAUGHLIN, CLARKE, LAMBERT, and Houghton, jj.
    Edward L. Blackman, for appellant.
    M. E. Harby, for respondents.
   LAMBERT, J.

There does not appear to have been any serious question that the facts justified the ex parte order for the examination of the defendant respondents. .The order vacating such order was made upon the single ground, stated in the opinion of the court at Special Term, that “this action is now pending before a referee, and therefore the order herein for the examination of the defendant Greene is unnecessary.” Section 870 of the Code of Civil Procedure specially provides that an examination of this character “may be taken at his own instance, or at the instance of an adverse party, or by'a coplaintiff or codefendant, at any time before or during the trial, as prescribed in this article.” The fact that the case is actually on trial does not make .any difference. The rule of the Code is positive, and the original order, being proper upon the facts before the court, should not have been vacated. Goldmark v. Electro-Galvanizing Co., 111 App. Div. 526, 528, 97 N. Y. Supp. 1078; McKeand v. Locke, 115 App. Div. 174, 100 N. Y. Supp. 704.

The order appealed from should be reversed, with $10 costs and disbursements, and the order for examination of defendant should be reinstated, and the motion to vacate denied, with $10 costs. All concur.  