
    SUPREME COURT.
    The Erie Railway Company and James Fisk, Jr., agt. Marshall B. Champlain and others.
    Where a person whose affidavit or deposition is required to be used on a motion (Code, § 401, sub. 7) appears before the referee appointed for the purpose of taking such deposition, and is partially examined without objection, it is then too late for him to move to vacate the order appointing the referee, on the ground that he had not refused to make his deposition.
    
      Otsego Special Term, April, 1868.
    Motion by James H. Coleman to set aside an order made at a special term of this court, on the first day of April, 1868, appointing Amasa A. Redfield, Esq., referee to take his deposition, to be used upon a motion in this action to ' suspend Frank Work from his office as director of the Erie Railway Company. The order was procured by the plaintiffs, under subdivision 7 of section 401 of the Code. Coleman appeared and was sworn before the i;eferee, in pursuance of the order, and answered some questions that were put to him by the plaintiffs’ counsel. His examination was then stopped by an order staying proceedings, under the order appointing the referee, until he could make this motion to set aside the last mentioned order, on the ground that he never refused to make an affidavit for the plaintiff.
    Lewis Seymour, for plaintiffs.
    
    Samuel Edick, for Coleman.
    
   Balcom, J.

It is unnecessary to decide the question whether the conduct of Coleman was such as to entitle the plaintiffs to an order appointing a referee to take his deposition, pursuant to sectioti 401, subdivision 7, of the Code, if the facts had been fully and particularly presented to the court when the order was granted. He appeared, was sworn and partially examined before the referee, without objection. After doing that, it was too late for Mm to raise the objection that the order was irregularly granted, or to move to have it set aside, on the ground that Ms conduct had not been tantamount to a refusal to make an affidavit for the plaintiffs, to be used upon a motion in the action to suspend Work from Ms office of director of the Erie Railway Company. The question is not presented whether any of the interrogatories put to Coleman were impertinent, and I shall not express an opinion respecting the same.

The motion is denied, with $10 costs to be paid by Coleman to the plaintiffs, on the sole ground that it is made too late.  