Opinion
November 22, 1907.
Hugo Hirsh, for the appellant.
Edward Ward McMahon [ Charles Thaddeus Terry with him on the brief], for the respondent.
This appeal is taken from an order of the Special Term vacating an order of Mr. Justice ABBOTT settling interrogatories annexed to a deposition to be taken without the State. The appellant contends that in granting this order the learned justice at Special Term passed in review upon the action of another justice, and that his action in sustaining the objections interposed by the plaintiff to defendant's direct interrogatories was unauthorized. The motion to vacate was not based upon the ground that the settlement was the result of "mistake, inadvertence, surprise or excusable neglect;" on the contrary, the moving papers showed plaintiff's claim to have been that the settlement was contrary to law and the General Rules of Practice. We think that if the plaintiff felt itself aggrieved by the action of Mr. Justice ABBOTT, the proper practice would have been to appeal to this court, but instead it moved for a rehearing before another justice. This action was unauthorized and the order must be reversed. ( Matter of White, 101 App. Div. 172; Platt v. N Y Sea Beach R. Co., 170 N.Y. 451; Columbia Mut. Building Assn. v. Mittnacht, 62 App. Div. 425, 427.) In the latter case Mr. Justice WOODWARD, in discussing this subject, says: "The effect of this order is to reverse the decision of the justice who tried the case, and we are of opinion that this cannot be permitted. When the Legislature gave to this court the power, under the provisions of section 1022 of the Code of Civil Procedure, to `award a new trial or grant to either party the judgment which the facts warrant,' it evidently contemplated that errors, irregularities or improper judgments or orders should be corrected, not by orders changing the form and substance by the court at Special Term, but upon appeal to this court; it is the Appellate Division alone which is authorized to `grant to either party the judgment which the facts warrant,' and it would entail endless confusion and great popular disrespect for the court, if the deliberate judgment of one justice could, upon motion, be overturned by another in the manner here attempted."
There is a further reason why this order must be reversed. The justice at Special Term undertook to pass upon the objections to defendant's direct interrogatories. We are unable to find any authority in a case where a deposition is to be taken out of the State under which the justice before whom interrogatories are settled is permitted to pass upon objections. In discussing this precise question Judge O'BRIEN, in Wanamaker v. Megraw ( 168 N.Y. 125, 131), says: "The commission was issued in this case and the interrogatories settled under sections 887-892 of the Code. The interrogatories in such case may be settled by consent or by a judge of the court or a county judge. (Section 891.) The settlement of the interrogatories is in no sense a decision that they are competent or proper, and the judge has no power to change or amend them, or to reject any of them. The allowance or settlement is required only for the purpose of authenticating the interrogatories as the ones which the commissioner is authorized to propound to the witness. He cannot propound any other than such as are thus allowed and authenticated by the judge, but the allowance has no other effect. This is very clear since by section eight hundred and ninety-two `either party must be allowed to insert therein any question, pertinent to the issue, which he proposes.' It is very plain, therefore, that the judge on the settlement cannot pass upon the competency of any question, and, of course, he cannot then know what answer will be given."
It follows, therefore, without passing upon the other questions presented, that the order must be reversed, with ten dollars costs and disbursements.
WOODWARD, JENKS and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements.