Summary
In Fitzpatrick v. Honnell (142 Misc. 101) Mr. Justice TAYLOR held that there is such right of cross-examination, or at least that the examination cannot be read upon the trial unless opportunity to cross-examine has been afforded.
Summary of this case from Gottfried v. GottfriedOpinion
September 28, 1931.
Morton Lexow [ Alton W. Teale of counsel], for the plaintiff.
Natalie F. Couch, for the defendant Cervieri.
William E. Lowther, for the defendant Honnell.
I am of opinion, and decide, that this motion for the taking of the deposition of the defendant Cervieri as a party before trial should have been made upon notice not only to the said defendant to whom notice was given, but also to the defendant Honnell, who has appeared and answered, but to whom notice of this application has not been given. Examine the mandatory provision of section 292 of the Civil Practice Act, and read also Solomitz v. Steinberg ( 225 A.D. 851). The reason for the said provision of section 292, undoubtedly, is that no deposition could properly be read upon the trial of the action unless both defendants had the opportunity to cross-examine upon the taking of the deposition.
The instant motion of the plaintiff for the examination of the defendant Cervieri before trial is denied, with ten dollars costs of the motion to the defendant Cervieri to abide the event of the action; but without prejudice to plaintiff's renewal of the motion upon proper notice to both defendants.