
    TOWNSEND et al., Respondents, v. MacGOVERN et al., Appellants.
    (Supreme Court, Appellate Term.
    May, 1902.)
    Action by James R. Townsend and another against Frank Mac-Govern and another.
    White & Case, for appellants. E. E. Mercelis, for respondents.
   PER CURIAM.

This is an appeal from the general term of the city court, affirming an order of the special term, denying a motion to vacate an order for the examination before trial of two of the defendants. The order appealed from is one which does not go to the merits of the controversy, but is merely incidental to the suit. The rule is that an order of this kind is one of those matters of practice and procedure which should always be left to the court of original jurisdiction, and its decision should not be reviewed here, unless it appears from its order, and the papers upon which it is based, that the decision was founded upon some ground of law, not involving discretion, or the facts were not such as to bring the matter within the jurisdictional discretion of the court. See Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. 594. It seems to us, after a careful examination of the affidavit upon which the order for the examination is based, that it shows a compliance with the technical requirements of the Code, and states facts sufficient to call for the exercise of the discretion of the court below. So far as any controverted statements of facts are concerned, this court will not weigh the evidence in an appeal from the city court, where there is any evidence to sustain the finding of the court below. The order must be affirmed, with S10 costs and disbursements. Order affirmed, with $10 costs and disbursements.  