PER CURIAM:
Plaintiff served notice, under sections 288, 289 and 290 of the Civil Practice Act, that he desired to take before trial the deposition of defendant's secretary as an adverse party, and at the same time he served a subpoena duces tecum. Defendant, appearing specially, moved at Special Term for an order setting aside the service. The motion was made upon the grounds that the service of the notice violated rule 121 of the Rules of Civil Practice, in that the notice was not served "at least five days before the time specified therein for the taking of the testimony," and that the person upon whom the subpoena was served was not handed the required fee by the process server. The objection to the non-payment of the fee was abandoned by defendant on appeal, and the only question presented is whether in the service of the notice there was a violation of rule 121.
Section 290 of the Civil Practice Act reads: "Notice of taking testimony by deposition. A party to an action desiring to obtain testimony therein by deposition shall give reasonable notice to his adversary." Rule 121 of the Rules of Civil Practice prescribes what, in the circumstances, reasonable notice is. It states in part: "Notice of taking testimony by deposition. The notice of taking testimony by deposition * * * shall be served at least five days before the time specified therein for the taking of the testimony."
Rule 121 is not restricted in its application to rule 120, which was undoubtedly framed for the purpose of amplifying the procedure by which, under the provisions of section 307 of the Civil Practice Act, the testimony of a person not a party may be taken for use upon a motion.
Service of the notice, therefore, was not in accordance with the rule. Section 294 of the Civil Practice Act, however, provides, among other things: "An order for the taking of testimony by deposition, under any provision of this article, or an order denying a motion to vacate a notice given pursuant to section two hundred and ninety, may prescribe terms and conditions, not inconsistent with this article." The court below, in denying the motion to set aside the service, set the date of the new hearing seven days forward from the date of the entry of the order, which was two days more than the time prescribed by the rule. This condition, made by the court in accordance with section 294 of the Civil Practice Act, overcame the irregularity in the service.
The order should be affirmed, with ten dollars costs and disbursements.
KELLY, P.J., RICH, JAYCOX, MANNING and KELBY, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.