Opinion
May 2, 1958
Harold E. Heller for plaintiffs.
Bernard Helfenstein for defendant.
Plaintiff moves to strike defendant's answer on the ground that defendant, by one of its officers, refused at an examination before trial of the defendant to answer certain questions; or in the alternative to direct that the said examination shall continue. Plaintiff also moves for leave to serve an amended bill of particulars.
There is no authority by which an answer may be stricken for the refusal to answer questions at an examination before trial. Plaintiff's remedy for such failure lies elsewhere (see 1 McCullen, Examinations Before Trial [rev. ed.], § 574 et seq.). Accordingly the motion to strike is denied.
It is clear that the examination has not been completed by reason of defendant's refusal to answer certain questions. Whether or not the said questions are relevant to the issues cannot be determined from the papers submitted on this motion. Accordingly plaintiff is afforded the opportunity to continue the examination and, if similar objections to answer are raised, disposition thereof could be made as provided for in rule 129 of the Rules of Civil Practice. The alternative motion is granted. The defendant by its officers is directed to continue its examination at Special Term, Part II of this court on the 15th day of May, 1958, at 10:00 A.M., or at such other time and place as the parties hereto shall stipulate.
Plaintiff's motion for leave to serve the proposed amended bill of particulars is granted, there being no objection thereto. Submit order.