Fahrney v. Eller

278 A.D. 635, 102 N.Y.S.2d 724

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1951
• Status: Published

Opinion

Shientag, J.

(dissenting). I dissent. If the plaintiff is to be examined before trial, at this time, no reason has been shown why such an examination should not be had after the conclusion of the defendant’s examination before trial.

In the absence of special circumstances, the plaintiff should have the right to examine first. The fact that defendant moved for an examination before trial a week before the plaintiff made a similar motion does not warrant a departure from this practice particularly where plaintiff’s motion was originally returnable March 20, 1950, and defendant’s motion was originally returnable on April 11, 1950, and where both motions were ultimately submitted to the court at the same time. I see no reason for applying any so-called “ first come, first served ” rule to a situation such as is here presented.

(4161.) Peck, P. J., Cohn, Callahan and Van Voorhis, JJ., concur in decision-, Shientag, J., dissents in opinion. (4162.) All concur.

(4161.) Order, so far as appealed from, affirmed. No opinion. (4162.) ' Order affirmed. No opinion. The date for the examination to proceed shall be fixed in the order. Settle order on notice.