
    Sydney A. Smith, Respondent, v. Elly Smith, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Depositions — depositions to be used in other states — actions in foreign countries.
    Motions and orders — motion papers — service of papers with notice—orders — settling order — order on default.
    Under the rule of court that, if a motion is not opposed, the moving party on proof of due service of the motion papers shall be entitled to the order or judgment asked for unless the court shall otherwise direct, the court may refuse to vacate and set aside an order for the examination of defendant before trial, because plaintiff happened to be late at the call of the calendar, and deny defendant’s motion to resettle said order so as to show a default on the part of plaintiff.
    In an action to recover the amount of a loan sent to defendant at Paris at her request, the plaintiff is entitled to an examination qf defendant before trial to prove that letters and telegrams were sent by defendant to plaintiff and that money was received by her.
    Appeal by defendant from an order of the City Court of the city of ¡New York denying the defendants motion to vacate and set aside an order which required the defendant to appear and attend for examination before trial and also from an order which denied the defendant’s motion to resettle the aforesaid order so as to show a default on the part of the plaintiff and recite that the said order for the examination of the defendant was vacated and set aside.
    
      Bernard Gordon (Gaston Ro'sensteil, of counsel), for appellant,
    Merrill & Rogers (iSToah. 0. Rogers and Robert H. Ewell, of counsel), for respondent. .
   Gebabd, J.

The appellant alleges that she made a motion to vacate the order for defendant’s examination; that the other side defaulted at the call of the calendar in the Oity Court and that under rule 37 of the General Rules of Practice, “ If the opposite party shall not. appear to oppose, the party making the motion shall be entitled to the order or' judgment moved for on proof, of due service of the notice or' order and papers required to be served by him, unless the court shall otherwise direct.”

I think that the court below was • quite right in refusing to vacate the order of examination because the plaintiff happened to be late at the call of the calendar, and the order denying this motion to resettle the order denying the motion to have the order for the examination of the defendant before trial, is affirmed on the opinion of Mr. Justice Delehanty.

Coming to the merits of the order for the examination of the defendant before • trial, which defendant seeks to vacate, it appears that this action was brought by plaintiff to recover the sum of $2,515.75, moneys alleged to have been loaned and advanced by the plaintiff to the defendant herein and sent to her by cable to Paris at defendant’s request, I think that the plaintiff is entitled to this examination'in order to sustain his affirmative cause and to prove that letters and telegrams were sent by the defendant to the plaintiff and that money was received by her. See Reed v. Smith, 122 App. Div. 795.

The orders appealed from must be affirmed, with ten dollars costs and disbursments.

Seabuby and Guy, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.  