Opinion
February, 1929.
Order reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. While defendant was not entitled to notice of the application to take the testimony by deposition pursuant to the provisions of section 295 of the Civil Practice Act, since the action had not then been commenced, the testimony so taken cannot be read in evidence upon the trial of the action for the reason that it was taken orally under the order without notice to the defendant. (Civ. Prac. Act, § 303.) A contrary ruling would deprive the defendant of her right to cross-examine the witness. Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur.