Opinion
November 10, 1960
Order, entered April 8, 1960, as denies plaintiff's motion for an open commission to examine William A. Fasolo, a nonresident, as a witness unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion for issuance of an open commission in New Jersey to examine William A. Fasolo as a witness is granted, with $10 costs. In this action to recover brokerage commissions, jurisdiction of the defendant, May Fasolo, was obtained by service outside the State after a warrant of attachment had issued. However, the plaintiff was unable to obtain jurisdiction or serve the other named defendant, William A. Fasolo, who resides in New Jersey and is the son of May Fasolo. Therefore, the plaintiff obtained an order discontinuing the action against him. The application before us now seeks to examine the said William A. Fasolo as a witness to determine whether the acts of the defendant alleged in the complaint were in fact done by him acting as his mother's agent. The specific denial by the defendant of the critical issue of any authorization to William A. Fasolo, the letters from the said Fasolo, the nature of the action, and circumstances of the case as revealed by the record, establish that the information sought is material and necessary, and that such special circumstances exist as warrant granting of the relief sought pursuant to article 29 of the Civil Practice Act. Settle order on notice.
Concur — Botein, P.J., Rabin, Stevens and Eager, JJ.