La Bonte v. Long Island Railroad

242 A.D. 844

Opinion

Order denying plaintiff’s motion for the examination of a witness before trial in an action for negligently causing the death of plaintiff’s intestate reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten collars costs; the examination to proceed on five days’ notice. In .our opinion, Woods is a material witness concerning the facts and circumstances surrounding the accident, and, although not now in defendant’s employ, he appears to be an unwilling, if not a hostile, witness. Special circumstances within the meaning of section 288 of the Civil Practice Act, entitling the plaintiff to take his deposition, therefore, exist. Lazansky, P. J., Young, Carswell, Seudder and Tompkins, JJ., concur.