Opinion
May 26, 1958
Golden, Wienshienk, Rosenthal Mandel for plaintiff.
John E. Haigney and Peter R. Rado for Mitchell Leventhal, defendant.
Rein, Mound Cotton for Benjamin Sack, defendant.
Goldwater Flynn for A. Loeb Salkin and others, defendants.
Motion to modify plaintiff's notice of examination and the cross motion for an examination before trial of defendant as a party and a witness are disposed of as follows:
By cross-moving for an order directing the examination of defendant, plaintiff has abandoned his original notice of examination. Accordingly, the motion to modify that notice is academic and is dismissed. Since the objections to the notice are applicable to the cross motion for an examination before trial, those objections have been considered by the court in disposing of the cross motion.
Insofar as the cross motion seeks to examine defendant as a witness, the motion is denied without prejudice. While rule 121-a of the Rules of Civil Practice as amended authorizes an examination of a party "with respect to the relevant and material allegations of fact put in issue by the pleadings in the action", that rule is inapplicable to the examination of witnesses. Accordingly, plaintiff may, if so advised, move to examine the defendant as a witness upon a proper showing and upon specifically enumerated items. ( Wax v. Sacks, 280 App. Div. 900; Augenblick v. Augenblick, 203 Misc. 360; Shoreham Operating Corp. v. Peyser, 7 Misc.2d 100.)
Since all of the causes of action are not asserted against the defendant, it necessarily follows that the examination will be restricted to the issues raised in the counts directed against defendant. The relevancy and materiality of any inquiry, as limited by the pleadings cannot be determined at this time but must be passed upon by the Justice presiding at Special Term, Part II, at the time rulings are sought. It may not be presumed in advance of the examination that plaintiff will endeavor to go beyond the permissible limits of inquiry with respect to any partnership affairs. As defendant has not served a demand for a bill of particulars, he is not entitled to a deferment of the examination.
The cross motion is granted in accordance with the foregoing and the defendant is directed to submit to an examination within the scope of rule 121-a of the Rules of Civil Practice as a party at Special Term, Part II, of this court on June 10, 1958, at 10:30 o'clock in the forenoon of that day.
Relevant books shall be produced and used pursuant to section 296 of the Civil Practice Act.