
    Rogers v. Durant.
    
      Witness — order for examination under Gode, % 401.
    Plaintiff, for the purpose of opposing a motion, required the affidavit of D. as to facts within the knowledge of D. He applied to D. several times upon successive days, hut D. each time declined to make the affidavit until he could consult his counsel. Held, sufficient to authorize an order for the examination of D. under Code, § 401.
    
      Appeal by Charles W. Durant (not a party to the action) from an order of the special term denying a motion made in his behalf, .to set aside an order of reference to take his deposition to oppose two motions in the action.
    
      Carlisle Norwood, Jr., for appellant.
    
      Wm. K Btiger & Ira Bliaffer, for plaintiff and respondent.
   Tappen, J.

The only matter passed upon in the opinion is fully stated in the head-note.

Order affirmed.  