Opinion
July 11, 1967
Order, entered May 22, 1967, unanimously reversed, on the law and the facts, and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant, and motion by plaintiff for continuation of examination before trial of defendant by certain other employees denied. In this personal injury action, the defendant produced for examination the yard conductor who operated the train involved in the accident. Thereafter, purusant to order, the defendant produced for examination its passenger train master. The said witnesses were produced by the defendant as those employees having knowldge of the facts and they were fully examined by the plaintiff. Under the circumstances, the order appealed from which directed the production by the defendant for examination of ten more employees represents an improvident exercise of the discretion vested in Special Term, it not appearing that any of these employees witnessed the accident or that their testimony is material and necessary in the prosecution of this action. (See Gunther v. Roaman's, Inc., 26 A.D.2d 810; Neechi Sp. A. v. Nelco Sewing Mach. Co., 23 A.D.2d 543; Hillcrest Terrace v. Zaubler, 22 Misc.2d 179.)
Concur — Stevens, J.P., Eager, Steuer, Capozzoli and McGivern, JJ.