Opinion
May 18, 1967
Order, entered June 20, 1966, unanimously modified, on the law and on the facts to allow defendants' proposed cross questions, Nos. 4(a) through 4(e) and 5(a) and 5(b) and, as so modified, affirmed, without costs or disbursements to any party. Plaintiff, an attorney authorized to practice law in West Germany, seeks to recover for professional services allegedly performed for defendants. The parties stipulated that plaintiff's testimony should be taken by written questions (CPLR 3108). They were unable to agree, however, on certain direct and cross questions. We concur with the rulings of Special Term except that plaintiff's objections to defendants' cross questions Nos. 4(a) through 4(e) and 5(a) and 5(b) should not have been sustained. These cross questions seek to explore plaintiff's knowledge of services performed by one Zilken in the same transaction. It is a defense asserted in the answer that plaintiff and Zilken are attempting to recover in separate actions for the identical services (cf. Zilken v. Leader, 23 A.D.2d 644). We conclude that the subject matter of the proposed cross questions is a proper subject of inquiry by defendants.
Concur — Botein, P.J., Steuer, Tilzer, Rabin and Bastow, JJ.