Cole v. Manufacturers Trust Co.

253 A.D. 749, 300 N.Y.S. 1194, 1937 N.Y. App. Div. LEXIS 5455

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1937
• Status: Published

Opinion

Order directing plaintiff’s assignor to appear for oral examination in Pasadena, Cal., on the matters specified therein, and requiring plaintiff to pay to the attorneys for the moving defendants the sum of $1,134 for counsel fees and expenses, modified by striking therefrom item 1 and that part of item 2 reading as follows: “ The purchase by Manufacturers Trust Company of said securities at said sales; ” and by striking out the provision requiring plaintiff to pay the $1,134, and as so modified affirmed, with ten dollars costs and disbursements to appellant. Respondents are not entitled to examine plaintiff’s assignor with respect to the matters struck out, because as to them plaintiff has the burden of proof. Where an oral examination outside the State is ordered, the court, in the exercise of discretion, may require either party to pay the expenses of his adversary, but in the absence of unusual circumstances the policy of the courts has been to require the moving party to pay the expenses of the examination. (Drake v. Line-A-Time Mfg. Co., Inc, 226 App. Div. 717; Matter of Interocean Mercantile Corporation, 207 id. 164, 166; Buffalo Gravel Corporation v. Moore, 201 id. 242; MacDonald v. Wills & Co., Ltd., 196 id. 914, 915; Reed v. Fenn, 138 id. 417, 419; Richter v. 44 West 175th Street Corp., 162 Misc. 745, 747.) No reason appears here for departing from this established practice. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur. Settle order on notice.