Schmitt v. Neapolitan Ice Cream Co.

213 A.D. 884

Opinion

Order granting examination of defendant corporation before trial in part, affirmed, with ten dollars costs and disbursements. The learned justice at Special Term was right in 'holding that defendant corporation cannot be examined as a party through persons who have ceased to be officers. (Chartered Bank of India v. North River Ins. Co., 136 App. Div. 646; Duncan v. Jones, 32 Hun, 12.) The bonafides of the termination of relations between the three witnesses and the defendant corporation was not challenged on the papers before the Special Term. Where special circumstances render it proper such persons may be examined before trial as witnesses. (Chittenden v. San Domingo Improvement Co., 132 App. Div. 169.) But that was not the application before the court. As to the other matters eliminated by the Special Term we think the examination as allowed sufficient. Kelly, P. J., Jaycox, Manning, Kelby and Kapper, JJ., concur.