Opinion
September 29, 1952.
In an action for slander, plaintiffs appeal from an order directing the examination, by defendants, of a witness. Order reversed on the law and the facts, with $10 costs and disbursements, and motion to vacate the notice of examination granted, with $10 costs. Respondents failed to show special circumstances warranting the examination of the person sought to be examined (Civ. Prac. Act, § 288). He is not a party or the agent or employee of a party to the action (Rules Civ. Prac., rule 121-a). Respondents deny they ever made to him any of the alleged scandalous statements which the plaintiffs have the burden of establishing. The examination is not sought to establish the truth of the alleged statements. (Cf. Sommers v. New York World-Telegram Corp., 279 App. Div. 937.) Nolan, P.J., Carswell, Johnston, MacCrate and Schmidt, JJ., concur.