Opinion
April 7, 1911.
William W. Niles, for the appellant.
Edwin R. Leavitt, for the respondent.
In so far as the defendant sought to vacate the order for his examination his motion was properly denied. He had already once made that motion without success and in order to renew it he should have first obtained leave to do so. The fact that judgment had been ordered in defendant's favor upon the pleadings, but with leave to the plaintiff to amend his complaint, did not serve to vacate ipso facto the order for defendant's examination, although it might have furnished grounds for an appeal to the court to exercise its discretion to the extent of permitting a renewal of the motion to vacate. It was, however, inadvertent to order the examination to proceed in the then state of the case, because although the amended complaint had been served, it had not been answered and there were consequently no issues to which an examination could be directed. The order appealed from must, therefore, be reversed in so far as it denies defendant's motion to vacate the order of September 13, 1910, and sets a date for the examination to proceed. In so far as it denies the motion to vacate the order for examination it is affirmed, without costs to either party in this court.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order reversed to the extent stated in opinion, otherwise affirmed, without costs. Settle order on notice.