Kraushaar v. Gross

270 A.D. 953, 62 N.Y.S.2d 485, 1946 N.Y. App. Div. LEXIS 4843

Opinion

In an action based upon a joint venture agreement and to set aside a conveyance as fraudulent, order granting in part plaintiff’s motion for an examination before trial modified on the law by striking from the second ordering paragraph the provisions directing Sarah Sirkin, and Keren Realty Co., Inc., by Harry Sirkin, president, and Sam Maltz, secretary, to appear for examination; and by adding a provision that the denial of the motion insofar as it relates to the examination of such nonresidents is without prejudice to an application by plaintiff to take the testimony of such persons by deposition or open commission without the State, or to renew the application for an examination before trial within this State in the event that any of them becomes available within the State. As so modified, the order is affirmed, with one bill of $10 costs and disbursements to appellants Sarah Sirkin and Keren Realty Co., Inc., the examination of appellants George M. Gross and Lawrence Morton, and the witness Louis Jonas to proceed on five days’ notice. It is not satisfactorily shown that the Sirkins or the defendant Maltz are available for examination in this State. Their examination should be by deposition or by open commission without the State since plaintiff concedes that they are residents of Florida. (Rochester v. Bergen, 263 App. Div. 733; Sehiff v. Sehiff, 268 App. Div. 911.) Upon the papers presented, Special Term properly accepted as correct plaintiff’s allegation that the witness Jonas was employed by defendants Harry Sirkin and Keren Realty Co., Inc. This was sufficient to indicate that he was likely to be a reluctant, unwilling and hostile witness. (Zirn V. Bradley, 257 App. Div. 832; Grellin v. Van Duzer, 267 App. Div. 744; Gataldo v. Long Island B. B. Co., 268 App. Div. 1054.) Lewis, P. J., Hagarty, Carswell, Johnston and Adel,"JJ., concur.