Order unanimously affirmed, with ten dollars costs and disbursements, upon the ground that the judgment herein, entered upon the decision of Mr. Justice Hasbrouck on October 9, 1920, is still in full force and effect; that the taking of testimony pursuant to the order of Mr. Justice Nichols made December 13, 1920, was solely for the purpose of determining whether said judgment should stand or not; that the decision of that question was not “ a trial by the court of an issue of fact ” within the meaning of section 442 of the Civil Practice Act or section 1010 of the Code of Civil Procedure; that it was not error for Mr. Justice Hasbrouck to refuse to strike out the testimony of Dr. Beebe taken on October 9, 1920, when the defendant should have been present, having been fully notified; that the defendant was properly compelled in the circumstances to take his erossrexamination of *724such a non-resident witness by commission or waive the privilege, since he was in court as a matter of favor; and upon the further ground that such privilege as the defendant may have had under the said order of Mr. Justice Nichols has been waived by the laches of the defendant. Hasbrouck, J., not sitting.