Erie Railway Co. v. Champlain

35 How. Pr. 74

Opinion

Balcom, J.

It is unnecessary to decide the question whether the conduct of Coleman was such as to entitle the plaintiffs to an order appointing a referee to take his deposition, pursuant to sectioti 401, subdivision 7, of the Code, if the facts had been fully and particularly presented to the court when the order was granted. He appeared, was sworn and partially examined before the referee, without objection. After doing that, it was too late for Mm to raise the objection that the order was irregularly granted, or to move to have it set aside, on the ground that Ms conduct had not been tantamount to a refusal to make an affidavit for the plaintiffs, to be used upon a motion in the action to suspend Work from Ms office of director of the Erie Railway Company. The question is not presented whether any of the interrogatories put to Coleman were impertinent, and I shall not express an opinion respecting the same.

The motion is denied, with $10 costs to be paid by Coleman to the plaintiffs, on the sole ground that it is made too late.