We are inclined to hold with the appellant that the evidence sought on the examination must be offered by it ,(61 N. Y. 362; also opinion by Schuchman, J., 41 N. Y. Supp. 114); but, so far as we can learn by the papers submitted, the order appealed from was vacated because of irregularity in retquiring the examination to take place in a county other than that of plaintiff’s residence or place of business, and not because of laches. Moreover, the amended answer is dated ¡¡November 2, 1901, and the order to show cause is dated the nineteenth of that month; so the theory is plausible that the order complained against was not based upon the ground of respondent’s neglect below, notwithstanding the issue, for the purpose, of fixing the position of the cause upon the general trial calen*838dar, was to remain of date when first due. The allegations of the affidavits upon which the order for examination was granted bring it clearly within the lines of the Oode provision, and entitle the defendant to the relief to obtain which its motion was made (109 N. Y. 81; 44 App. Div. 89); but the affidavit of Mr. Trust makes it clear that the court did not obtain jurisdiction to enforce the order. Code, § 886.
There appears to be no good ground for entertaining the motion to dismiss the appeal, made before the argument of the cause, since no notice of motion was given, nor has appellant apparently done anything to waive its right to such notice. Such motion will therefore be denied.
The order appealed from should be affirmed, with costs and disbursements, with leave to apply to Special Term to have fixed a day for plaintiff’s examination under order of November 19, 1901.
O’Dwyer, J., concurs.
Order affirmed, with costs, with leave to apply to Special Term to have fixed a day for plaintiff’s examination under order of November 19, 1901.