The opinion
Rabin, J.
(dissenting). I dissent and vote to affirm the order of December 7, 1964, as modified by the order of January 15, 1965, both of which orders are the subjects of this appeal.
By order of December 7, 1964, the court directed that the books and records of the respondent be audited by officers of the court with the assistance of an accountant delegated by each party. There was no. objection made at the time to the audit of the books but the discussion referable to .such order made it clear that the respondent’s only objection to such procedure was based upon the fact that the order provided for the petitioner’s accountant to be present. Respondent subsequently moved to vacate that order urging that he had had no opportunity to *209 obtain a protective order under CPLR 3103. Upon the return of such motion the court eliminated the objectionable provision, i.e., the presence of petitioner’s accountant and directed that the audit be conducted .by the personnel assigned to the audit bureau of the court.
With respect to the objection that the respondent was not given an opportunity to obtain a protective order under CPLR 3103, the court on January 15, in its order dated that day, said as follows: “ (1) That the said motion by respondent to vacate the said order of the undersigned made on December 7, 1964, on the ground, among others, that no opportunity to. obtain a protective order under Section 3103 of the Civil Practice Law and Rules was afforded to respondent, is hereby deemed in effect to be a motion for such protective order, and independently the court .being expressly empowered under Section 3103(a), of the C. P. L. R. on its own initiative to make a protective order in connection with any discovery, the court hereby makes such protective order to the following effect.” Indeed, the court did give the respondent the protection he sought by eliminating the provision for the presence of the petitioner’s auditor. In the circumstances the pertinent section of the CPLR was in effect complied with and the order of January 15 should not be disturbed on the ground of failure of compliance with such section — particularly so since the respondent made no such procedural objection at the time the original audit was directed.
I am quite in agreement with the opinion of the majority except that I take the position that the respondent should not now be heard to complain with respect to the direction that his books be audited by a court auditor. He made no objection to such procedure in the Family Court and in fact he consented to it. Having so consented, he now has no standing to object to it on this appeal. ¡Such consent is evidenced by the statement of respondent’s counsel as follows: “ If you order an examination by your court auditors, that we can’t avoid, but I object to any private accountant coming in and going through [the respondent’s] books and records.” As indicated above, that objection was eliminated by the order of January 15. Further evidence that the respondent’s objection was limited to the attendance of petitioner’s representative and that he not only failed to object to an audit by the court auditor but in fact consented thereto appears from the following colloquy:
“ Mr. Lester [respondent’s counsel] : I object to that. I don’t think they should delve into his books. You have our tax returns. , . , , ...
*210 “ The Court: Everybody’s books are open in this court. You can’t object to it.
“Mr. Lester: To the Court, that is agreeable.” [Emphasis added.]
We have the situation then of the respondent’s lawyer agreeing to a court audit in the presence of the respondent who himself is a lawyer. It can hardly be said that these two lawyers stated that the examination by the court auditor “ is agreeable ” without appreciating the full significance of that statement. Having so consented on what basis then do they now appeal!
Brbitel, J. P., Eager and Stetjer, JJ., concur with Valeette, J.; Babiet, J., dissents in opinion.
Order, entered on December 7, 1964, and order, entered on January 15, 1965, reversed, on the law, on the facts and in the exercise of discretion, without costs and without disbursements, and the matter remanded to the Family Court for further action not inconsistent with the opinion of Valeette, J., herein,