Ferrer v. Ferrer

34 Misc. 2d 326, 228 N.Y.S.2d 285, 1962 N.Y. Misc. LEXIS 3349

Opinion

Louis B. Heller, J.

In this action wherein plaintiff obtained a judgment of separation, plaintiff moves to examine a witness after trial.

The basis for the application is the defendant’s motion to reduce the alimony granted to the plaintiff on the grounds that he has acquired additional financial burdens by supporting the witness and two children, as well as a reduction of his income resulting from impaired health.

It is conceded that plaintiff has obtained the right to examine the defendant as to the same information sought by the instant application.

Plaintiff has not demonstrated the special circumstances envisaged by the statute warranting the taking of the deposition of a witness. The relationship of the defendant and the witness in and of itself does not mean that the adverse party is entitled instantaneously to an examination of both. The plaintiff has not demonstrated that the information sought cannot be obtained from the examination of the defendant or that the witness alone is sufficiently possessed of the facts concerning which the examination is sought. The failure on plaintiff’s part to submit such proof warrants a denial of the motion at this time. (Lyon v. Fieldgren Realty Corp., 190 Misc. 700, affd. 273 App. Div. 917; Matter of Diamond [87 Nassau St. Corp.], 1 Misc 2d 802.)

Accordingly the motion is denied without prejudice to a renewal thereof, if so advised, upon the completion of the examination of the defendant.