Summary
In Reif v. Gebel (246 App. Div. 776 [2d Dept.]) the concomitant factor was that the desired witness "might not obey a subpoena" on the trial.
Summary of this case from Lubitz v. Port of New York AuthOpinion
December, 1935.
Plaintiffs appeal from an order denying a motion for an examination of one Dr. John Horni as a witness before trial. The action is for damages for malpractice. It is not denied that Dr. Horni treated the plaintiff wife before and after the alleged malpractice by defendant, or that when she and her lawyer questioned him he refused to discuss the case and "unequivocally stated that under no condition would he testify upon the trial of this action." Plaintiffs should not be compelled to wait until the trial for the examination of a hostile witness and one who, by reason of his statement, might not obey a subpoena. There is a fair showing of "special circumstances," under section 288 of the Civil Practice Act, to entitle plaintiffs to this examination. Plaintiffs are not, however, entitled to examine the witness as to the cause of the injury to fibroid tumor or other substance on or in the uterus, for the reason that it calls for an expert opinion. ( Bartlett v. Sanford, 244 App. Div. 722; Paparone v. Ader, 139 Misc. 281.) Order denying plaintiffs' motion for an examination of Dr. Horni reversed on the law, without costs, and motion granted, without costs, as to items 1, 2, 3, 4, 6, 7, 8 and item 5 to the following extent: nature of injury to fibroid tumor or other substance on or in uterus. The examination to the extent herein granted shall proceed at a time and place to be stated in the order. Lazansky, P.J., Young, Hagarty, Tompkins and Davis, JJ., concur. Settle order on notice.