Henshel v. Held

17 A.D.2d 806, 233 N.Y.S.2d 14, 1962 N.Y. App. Div. LEXIS 7421

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1962
• Status: Published

Opinion

Order, entered on February 14, 1962, granting plaintiff’s motion to vacate a notice by defendant Held to examine eodefendants before trial unanimously reversed on the law and the facts, with $20 costs and disbursements to appellant, and the motion denied. In Schneider v. Doyle (6 A D 2d 122) we held that a defendant may examine a codefendant before trial though there were no cross claims asserted. Section 288 of the Civil Practice Act provides that any party to an action may take the deposition of any other party which is material and necessary. Rule 121-a of the Rules of Civil Practice also provides that any party may cause the deposition of any other party to be taken. While Schneider v. Doyle (supra) was a personal injury action, the rationale of that holding applies to all actions. The codefendants sought to be examined herein were added as indispensable parties to the action by order of this court. (Henshel v. Held, 13 A D 2d 771.) No claim is asserted against the codefendants by any of the parties. Nevertheless, they were served with process and have appeared by the same attorneys who represent plaintiff in the action. They have interposed no answer. However, having been served and having appeared in the action, the codefendants became “ parties ” within the meaning of section 288 of the Civil Practice Act and rule 121-a of the Rules of Civil Practice. They may, therefore, be examined as parties and appellant need not proceed against them as witnesses. Settle order on notice. Concur — Botein, P. J., Breitel, Valente, McNally and Eager, JJ.