Opinion
May 15, 1939.
Order denying motion of the defendant to examine the plaintiff before trial reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, except that the books, records and documents are to be used only to refresh the recollection of the persons examined. Examination to proceed on five days' notice. The appellant is entitled to the examination sought to establish whether he has fully discharged the duties of his trust as set forth in the agreement attached to the complaint. ( Oshinsky v. Gumberg, 188 App. Div. 23.) The appellant claims commission of ten per cent upon the claims of all paid creditors who joined in the agreement and alleges that the plaintiff has paid some of these creditors direct, thus depriving the appellant of his commission. He is entitled to the examination sought also for the reason that it is necessary to establish his counterclaim. Lazansky, P.J., Johnston, Adel, Taylor and Close, JJ., concur.