Opinion
June, 1936.
In an action brought as subrogee by the surety upon the official bond of the administrator of the goods, chattels and credits of John L. Smith, deceased, to recover the amount of a certain draft collected by the defendant bank for the administrator and allegedly never paid to the administrator or his successor in that office, order granting motion for the examination of Leonard E. Teed as a witness before trial reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The respondent's showing upon the motion wholly failed to demonstrate that the testimony sought to be elicited by the proposed examination was either necessary or material to any affirmative defense alleged in the amended answer, and in the exercise of sound discretion the motion should have been denied. Lazansky, P.J., Carswell, Adel and Taylor, JJ., concur; Davis, J., concurs on the ground that the examination may properly be denied under the circumstances shown in the exercise of discretion.