Opinion
279 A.D. 738 108 N.Y.S.2d 852 EUGENE A. HEGY, Respondent, v. WILLIAM A. WHITEs&sSONS et al., Appellants. Supreme Court of New York, First Department. December 18, 1951
Appeals by all defendants from so much of an order of the Supreme Court at Special Term, entered October 11, 1951, in New York County, as granted a cross motion by plaintiff for an order directing examination before trial of all defendants, and by defendant William A. Whites&sSons from so much of said order, granting said defendant's motion for an order directing examination before trial of plaintiff, as fixed the date of such examination subsequent to the aforesaid examination of all defendants by plaintiff.
Appeal by defendants Paramount Pictures Corporation, 1501 Broadway Corporation, Lehman Brothers and Paul Manheim from so much of an order of said court, entered on said date in said county, granting a motion by said defendants for an order directing examination before trial of plaintiff, as fixed the date of such examination subsequent to the date fixed by the first above-mentioned order for the examination of all defendants by plaintiff.
Appeal by defendant, Prudential Insurance Company of America, from so much of an order of said court, entered on said date in said county, granting a motion by said defendant for an order directing examination before trial of plaintiff, as fixed the date of such examination subsequent to the date fixed by the first above-mentioned order for the examination of all defendants by plaintiff.
In the light of the facts in this case we think defendants should have the right to examine the plaintiff before plaintiff examines defendants. Orders unanimously modified accordingly, and as so modified, affirmed, with one bill of $20 costs and disbursements to defendants-appellants.
SHIENTAG, J. (concurring).
I concur in the result here reached in view of the special circumstances presented in this case. I wish to point out, however, that the question as to whether the plaintiff or the defendant shall first be examined before trial is one which primarily rests within the sound discretion of the Special Term. The case of Dorros, Inc., v. Dorros Bros. (274 A.D. 11) which gave to a defendant in commercial litigation a general right of examination before trial as broad in essence as that possessed by a plaintiff (and not limited to matters concerning which the defendant had the burden of proof or of proceeding) in no way indicates who is entitled to priority of examination. Ordinarily, and in the absence of special circumstances, the plaintiff who has the burden of proof on the entire case is entitled to examine the defendant before the latter proceeds with his examination before trial of the plaintiff. Ordinarily also, the priority of examinations before trial, as between plaintiff and defendant, will not be determined on the basis of who made the first application, particularly when both applications come on to be heard at the same time. A lawsuit is not a game or a race between litigants for pre-trial relief.
Glennon, J. P., Dore, Cohn and Callahan, JJ., concur in decision; Shientag, J., concurs in the result, in opinion.
In the light of the facts in this case we think defendants should have the right to examine the plaintiff before plaintiff examines defendants. Orders unanimously modified accordingly and, as so modified, affirmed, with one bill of $20 costs and disbursements to defendants-appellants. Settle order on notice.