The right to examine the opposite party before trial is not absolute. It depends on the ability of the moving party to show the necessity therefor, and the order as granted ex parte is not conclusive that such necessity has been shown. The party opposing has a right to be heard, and if upon such hearing it is made to appear that the supposed necessity does not exist the order originally granted may be vacated. Ordinarily, the motion to vacate will be made to the officer who granted the original order, who may be presumed to be eager to correct any error into which he may have fallen. But it is not obligatory that the motion be made to him. Another may entertain it. We are therefore of opinion that the order appealed from is not erroneous as being without jurisdiction. On the merits we think the order was correct. The false representations as to which the appellant wished to inquire were set out in the pleadings. If not so set out, they could not be proved. Read v. Guano Co., 14 N. Y. St. Rep. 560. The alleged defects in the house, concerning which the applicant desired to inquire, could be more appropriately learned by moving for a bill of particulars, or that the complaint be made more definite and certain, which are the usual and ordinary methods of obtaining such precise knowledge of the opposing party’s claim as will enable one to meet it upon the trial. We think the appellant mistook his remedy, and that the order appealed from should be affirmed, with costs.