The plaintiffs’ counsel raises the question that the defendants cannot make this motion, and he insists that such a motion can be made only by the persons whose depositions the referee is required to take. The provision of the Code under which the order was made is: “When any *74party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may by order appoint a referee to take the affidavit or deposition of such person.” (Code, % 401, sub. 7.) No notice is required to be given to the adverse party to an action of the application for such an order, and such party has not the right to appear before the referee to cross-examine the person making the deposition. The order is a matter exclusively between the party that obtains it and the person whose deposition is desired; and I am of the opinion such person only can move to have it vacated. The party obtaining it should not be embarrassed by any motion of the adverse party to set it aside.
For these reasons, the defendant’s motion to set aside the order of the 28th of March last, appointing Redfield referee to take the depositions of Vanderbilt and others, is denied, with $10 costs. ’