Opinion
February 5, 1970
Order, entered on October 17, 1969, denying defendants' motion for the issuance of commissions to take written depositions of two nonresident witnesses, unanimously reversed on the law, on the facts, and in the exercise of discretion, and motion granted, without costs and without disbursements. The defendants have sufficiently demonstrated that the witnesses sought to be examined may possess evidence which is "material and necessary in the * * * defense" of this action (CPLR 3101, subd. [a]). At the very least it appears that both out-of-State witnesses have some knowledge of the adequacy and quality of plaintiff's performance under the alleged exclusive distributorship agreement which forms the basis of this law suit. The defendants have the right under CPLR 3108 to proceed upon written questions. The general rule is that a commission for the taking of testimony without the State issue upon written questions. Plaintiff may, however, within 20 days from the date of the order entered herein, serve on defendants written notice that it elects to conduct, at its own expense, oral cross-examination of the witnesses, and, in such event, defendants shall have the right, at their own expense, to be present by counsel in the foreign State and conduct oral direct examination of the witnesses. ( Walborsky v. Wolf, 28 A.D.2d 1120.) In any event, the expenses incurred are to be taxed as disbursements by the party ultimately succeeding in this action. Settle order on notice.
Concur — Capozzoli, J.P., Markewich, Steuer and Macken, JJ.