Opinion
March 24, 1948.
Donovan, Leisure, Newton, Lumbard Irvine for petitioner
Phillips, Nizer, Benjamin Krim for respondent.
In Matter of Moto Block Import Co. ( 140 A.D. 532, 535) the Appellate Division in this department in an opinion by LAUGHLIN, J., stated that the examination either of a witness or of an intended party in advance of the commencement of an action is authorized to perpetuate testimony. This language was quoted with approval in Matter of Hufstutler ( 220 A.D. 587) decided by the Appellate Division of this department after the adoption of the Civil Practice Act (see Civ. Prac. Act, § 295). The papers before the court indicate that there is grave danger that if the testimony of the proposed defendant is not taken at this time the latter may leave this country and prevent petitioner from subsequently obtaining his testimony, even through the issuance of a commission on written or oral interrogatories. In the court's opinion the taking of respondent's testimony at this time is necessary for the protection of petitioner's rights. The various objections urged to the order sought to be vacated are without merit. The motion to vacate is denied, and the examination directed to proceed at Special Term, Part II, New York County, on the 31st day of March, 1948, at 10 A.M.