Favole v. Gallo

261 A.D. 974, 25 N.Y.S.2d 806, 1941 N.Y. App. Div. LEXIS 8392

Opinion

Order denying motion for examination of witnesses before trial reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs; the examination to proceed at a time and place to be fixed in the order to be entered hereon. Under the circumstances disclosed, the plaintiff’s claim with respect to the release is akin to avoidance (Farrington v. Harlem Savings Bank, 280 N. Y. 1; Gilbert v. Rothschild, 280 id. 66), and an examination of witnesses, presumably hostile, will be directed. (LaBonte v. Long Island R. R. Co., 242 App. Div. 844; Gramatan Nat. Bank & Trust Co. of Bronxville v. Sagamore Apts., Inc., 241 id. 840.) Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur. Settle order on notice.