Smith v. Smith

76 Misc. 254, 134 N.Y.S. 901

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1912
• Status: Published

Opinion

Gebabd, J.

The appellant alleges that she made a motion to vacate the order for defendant’s examination; that the other side defaulted at the call of the calendar in the Oity Court and that under rule 37 of the General Rules of Practice, “ If the opposite party shall not. appear to oppose, the party making the motion shall be entitled to the order or' judgment moved for on proof, of due service of the notice or' order and papers required to be served by him, unless the court shall otherwise direct.”

I think that the court below was • quite right in refusing to vacate the order of examination because the plaintiff happened to be late at the call of the calendar, and the order denying this motion to resettle the order denying the motion to have the order for the examination of the defendant before trial, is affirmed on the opinion of Mr. Justice Delehanty.

Coming to the merits of the order for the examination of the defendant before • trial, which defendant seeks to vacate, it appears that this action was brought by plaintiff to recover the sum of $2,515.75, moneys alleged to have been loaned and advanced by the plaintiff to the defendant herein and sent to her by cable to Paris at defendant’s request, I think that the plaintiff is entitled to this examination'in order to sustain his affirmative cause and to prove that letters and telegrams were sent by the defendant to the plaintiff and that money was received by her. See Reed v. Smith, 122 App. Div. 795.

The orders appealed from must be affirmed, with ten dollars costs and disbursments.

Seabuby and Guy, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.