Rothstein v. DeSimone

267 A.D. 771, 45 N.Y.S.2d 294, 1943 N.Y. App. Div. LEXIS 6176

Opinion

Order directing the examination as an adverse party of defendant partnership through an employee modified on the law by striking out everything following the word “ denied ” in the first ordering paragraph. As thus modified, the order is affirmed, With ten dollars costs and disbursements to appellants, without prejudice to a renewal, upon proper papers, of the motion to examine the employee as a witness. A partnership may not be examined as an adverse party through its employee. (Roberts v. Hayden, 213 App. Div. 1.) Such an employee may be examined as a witness only on the grounds stated in section 288 of the Civil Practice Act. The present record is insufficient to authorize an examination of the employee as such witness. Close, P. J., Carswell, Johnston, Taylor and Lewis, JJ., concur.