(dissenting.) The examination of a party before trial,.at the instance of the opposite party, is regulated by the Code. Section provides for granting such an order. It is there provided that the judge to whom the affidavit required by section 873 of the Code is presented must grant an order for the examination, and that the order must require the person who is to be examined to appear before the judge for the purpose of taking the examination at a time and place therein specified. There is no provision as to notice of the application, and the usual practice is to apply ex parte; but there is no reason why a party should not give notice that he intends to apply to a judge of a court, at a time and place named, in an order requiring the opposite party to appear and be examined, and the fact that notice was given does not deprive the party making the application of his right to the order. If the affidavit on which the application was made complied with section 872 of the Code, the judge to whom the application was made was bound to grant an order requiring the plaintiff to appear before him, and submit to an examination, at a time and place therein named. I think the affidavit on which the order was applied for was sufficient. The provisions of section 872 were complied with, and it is clear that the examination of the plaintiff was material and necessary, and that the defendant intended to read the deposition upon the trial of the. action. The judge to whom the application was made should therefore have granted an order.for the examination of the plaintiff. The balance of the relief asked for was properly denied. It did not appear but that the.plaintiff would appear and submit to an examination if he was ordered to do so by a judge of the court. It is true he was a non-resident, but until an order was duly granted and evidence presented to the court that he could not be served, and had refused to appear, no order of the court should be made staying the proceedings until he should so appear. It is'not intended to intimate an opinion as to whether or not the court should grant an'order staying proceedings until the plaintiff should appear and submit to an examination already ordered; but until an order has been granted, and the plaintiff has failed to appear, there was no foundation for an application to the special term of the court for such an order. There can be no doubt as to the power of the court to stay proceedings in an action in case of the disobedience of its order, whether such a stay would be granted or not, in the sound discretion of the court. I think the order should be reversed, so far as it refused to grant an order for the examination of the plaintiff, and affirmed so far as it denied the defendant’s motion for a stay of proceedings, without costs of this appeal to either party.