Opinion
April 7, 1959
Alvin Miller for plaintiff.
Robert F. Connelly for defendant.
Upon the foregoing papers this motion for oral depositions outside the State is granted with respect to the adult witnesses and denied with respect to the infant witnesses. The infants are nine and six years of age, respectively. Their tender years make it mandatory for a court to require more than perfunctory procedures before their testimony will be compelled. However, since their attitude towards defendant has unfortunately been brought into issue in this action, their testimony would be material. Leave is therefore given to defendant to renew his motion upon proper showing of the conditions of the proposed deposition under which the children's competency to testify could be determined by proper authority and safeguards taken for their protection (see Palmieri v. Salsimo Realty Co., 202 Misc. 251). Reasonable expenses for the deposition to be taken herein shall be borne by defendant. Unless stipulated to be the parties, such reasonable expenses will be determined by the court upon affidavits to be submitted by the parties along with the order to be settled herein.
Settle order.