Freisinger v. Reibach

254 A.D. 575, 2 N.Y.S.2d 817, 1938 N.Y. App. Div. LEXIS 6619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1938
• Status: Published

Opinion

Order on an examination before trial of an individual defendant on behalf of the plaintiffs, on notice to the appealing codefendants, denying those codefendants the right to cross-examine the individual eodefendant being examined on motion of the respondents, reversed on the law, with ten dollars costs and disbursements, and the motion granted to the end that such examination may be had; the examination to be had on five days’ notice. Nixon v. Beacon Transportation Corporation (239 App. Div. 830) merely held that the examination of a defendant on behalf of a plaintiff, on notice to the codefendants, did not require the codefendants to appear and participate in the examination; that in such event the deposition thus taken was not binding on those eodefendants. That decision contemplated that the codefendants might, if they saw fit, appear, upon receiving notice, participate in the examination and be bound. Sustaining the latter practice furthers the ascertainment of the truth and facilitates the determination of the issues in the litigation. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.