Opinion
February 1, 1943.
Appeal from an order, as resettled, denying motion of plaintiff to punish defendants for contempt in refusing to testify in an examination before trial, and for other relief. Order affirmed, without costs, without prejudice to an application by plaintiff for a further examination, and one de novo, of each of the defendants before trial, before an official referee. Although the circumstances disclosed by the record, and particularly the refusal of the attorney for plaintiff to produce the transcription of the examinations at the instance of the learned Special Term Justice, required the denial of the motion to punish for contempt, the interests of justice would be defeated if in this action for wrongful death a proper examination before trial be not had of each of the defendants. The transcription of each examination had shows that it was of no value, due to the inept questions propounded by the attorney for plaintiff, the evasiveness of the witnesses and the refusals to answer proper questions, upon objections interposed by the attorney for defendants. Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.