Opinion
June 9, 1938.
In an automobile collision on a highway in Essex county, the plaintiff's testator was so seriously injured that he died three weeks after the accident in a hospital at Ticonderoga. The action is to recover damages for the personal injuries, property damage and damages for death caused by wrongful act, neglect or default. The plaintiff moved for an oral examination of the attending physician, the superintendent of the hospital, and two other witnesses at Ticonderoga. The motion was granted on condition that the plaintiff pay the defendant $264.80 counsel fee and expenses. From that part of the order the plaintiff appeals. The taking of depositions of witnesses more than one hundred miles from the place of trial serves the convenience of such witnesses and in general reduces the expense to the parties. In addition, it facilitates the trial and the work of the court. It is not the exercise of sound discretion to impose onerous terms on a party seeking such examination of witnesses within the State. Even when oral examination of witnesses without the State is desired, the terms imposed should be moderate. (See Dayton v. Farmer, 201 App. Div. 239; Drake v. Line-A-Time Mfg. Co., Inc., 226 id. 717; Cole v. Manufacturers Trust Co., 253 id. 749.) Order modified by striking from the first ordering paragraph the condition following the word "granted;" and as so modified affirmed, with ten dollars costs and disbursements to appellant. Lazansky, P.J., Davis, Johnston, Adel and Close, JJ., concur.