Opinion
June 3, 1924.
J.M.E. O'Grady, for the plaintiff.
Hubbell, Taylor, Goodwin Moser, for Lincoln National Bank and John J.L. Friederichs.
Harris, Beach, Harris Matson, for Security Trust Company and Julius M. Wile.
Wile, Oviatt Gilman, for Henry Barnard.
The notice for examination should be vacated. There is pending an order for the examination of the defendants and the plaintiff is required to pursue his remedy under that order. The order should be settled and the limits of the examination defined. The order was granted before the Civil Practice Act went into effect, but the provision relating to notice in that act is not supplementary to remedies theretofore resorted to. The plaintiff is not entitled to pursue the remedy by notice for an examination under the Civil Practice Act, having already obtained an order therefor under the Code of Civil Procedure, any more than he may duplicate orders or notices for examination under the present practice. He must stand on the proceedings taken. This course is required by an orderly administration of the law. The principle that prohibits a party from instituting a second suit for the same cause of action between the same parties underlies the prohibition against duplicating motions. The object is to prevent a multiplicity of actions and motions and to obviate a waste of judicial time. Hoover v. Rochester Printing Co., 2 A.D. 11. Motion to vacate notice for examination granted, with ten dollars costs to abide the event.
Ordered accordingly.