Laruffa v. Astarita

264 A.D. 785, 34 N.Y.S.2d 869, 1942 N.Y. App. Div. LEXIS 4726

Opinion

Order denying plaintiff’s motion to examine one Alexander DeLorenzo, agent of the defendant, as a witness before trial modified on the law and the facts by striking from the ordering paragraph the words “ in all respects denied ” and by adding in place thereof the words, “ granted to the extent of permitting the examination as to Items numbered 1, 2, 3, 4, 7, 8, 11 and 12.” As thus modified, the order is affirmed, with ten dollars costs and disbursements to the appellant, the examination to proceed upon five days’ notice. The entire transaction was handled by the party sought to be examined, acting as agent for the defendant. Such special circumstances exist as to make his testimony material and necessary to the plaintiff to establish the allegations of the complaint which are denied in the defendant’s answer. (Farber v. DeBruin, 253 App. Div. 909.) Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.