Opinion
July 9, 1956
In an action to recover damages for fraud and the reasonable value of work, labor and materials, the appeal is from an order denying appellants' motion to examine respondents' former employee, as a witness, before trial. Order reversed, without costs, and motion granted; examination to proceed on five days' notice. The witness sought to be examined participated in the negotiations leading up to the making of the contracts and "figured the job" for respondents. Whether they were misled in their figuring is a substantial issue. Further, there are affidavits by the witness and one of appellants' attorneys from which hostility of the witness clearly appears. These are sufficient special circumstances to warrant the allowance of the examination of the witness before trial (Civ. Prac. Act, § 288). Wenzel, Acting P.J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ. concur.