Bosurgi v. Chemical Bank New York Trust Co.

30 A.D.2d 950, 294 N.Y.S.2d 45, 1968 N.Y. App. Div. LEXIS 3214

Opinion

Order, entered March 4,1968, granting plaintiffs’ motion for a protective order, vacating defendant’s notice to take the deposition of plaintiff Emilio Bosurgi, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion denied, with $30 costs and disbursements. In view of the statement of plaintiffs’ attorney that Emilio Bosurgi, a native of Italy, will not attend the trial, the examination at defendant’s option may be had in Messina, Italy, by written interrogatories or upon open commission. If defendant elects the latter, the parties shall pay their respective expenses, which may be taxed as costs by the party prevailing. (Farrell Lines v. City of New York, 29 A D 2d 850; Pakter v. Lilly & Co., 19 A D 2d 810; Piel v. Lilly & Co., 19 A D 2d 810.) It appears that Emilio Bosurgi signed at least one document ratifying the alleged unauthorized transaction and plaintiff Leone Bosurgi admits he had a conversation with his brother before his brother signed the letter. In the circumstances the testimony of plaintiff Emilio Bosurgi is relevant. Order entered on November 27, 1967, unanimously affirmed, with $50 costs and disbursements to respondent. No opinion. Concur — Stevens, J. P., Tilzer, MeGivern, McNally and Macken, JJ.