Opinion
June 20, 1949.
In an action to recover damages for wrongful death, defendant appeals from an order granting plaintiff an examination before trial (in Richmond County) of defendant by four employees residing in Toledo, Ohio. Order modified on the law and the facts by providing that the examination shall take place in Toledo, Ohio, by written interrogatories or by open commission, whichever may be selected by plaintiff, and if plaintiff select an examination by open commission, the parties shall bear their own expenses. As so modified, the order is affirmed, without costs ( Goldstein v. Pullman Co., 266 App. Div. 790). This determination is without prejudice to renewal of an application for an examination before trial in this State or by open commission outside the State if plaintiff select an examination by written interrogatories and, after such examination, it be shown that the examination by written commission was insufficient and that oral examination is necessary. Settle order on notice within ten days from date of this decision. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.