Williams v. Sammis

268 A.D. 879, 50 N.Y.S.2d 742, 1944 N.Y. App. Div. LEXIS 4020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1944
• Status: Published

Opinion

Appeal by plaintiff from an order that denied his motion for an examination before trial of the defendant individually and granted her examination, as administratrix, to the extent only of permitting a discovery and inspection of decedent’s books showing transactions between plaintiff and decedent. Order, insofar as appealed from, affirmed, with ten dollars costs and disbursements, the examination to proceed on five days’ notice. The examination of defendant as administratrix must be limited to such knowledge as she possesses in her representative capacity since she is to be examined as an adverse party and not as a witness. (Nagel v. Nagel, 242 App. Div. 845.) Insofar as the motion sought to examine her individually, it requested the examination of a witness. (Pardee v. Mutual Benefit Life Ins. Co., 238 App. Div. 294.) No special circumstances were shown in this record to warrant such examination. This disposition, however, is without prejudice to a renewal of a motion to examine respondent as a witness if such special circumstances be shown. Close, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.