Opinion
November 1, 1943.
Action to annul a marriage. Order denying plaintiff husband's motion to strike out the provision of a former order for alimony pendente lite to the defendant wife affirmed, without costs. Order denying plaintiff's motion to take the deposition of a witness before trial reversed on the law and the facts, without costs, and the motion granted, without costs, the time and place of the examination to be fixed in the order to be entered hereon. No facts appear which would warrant the modification of the order awarding alimony pendente lite. The plaintiff's application for the examination of the witness was denied improvidently. The record demonstrates that facts exist, including those indicating hostility of the proposed witness to plaintiff, and the reluctance of the witness to testify to facts relevant to plaintiff's alleged cause of action, or even to attend the trial as a witness, which constitute special circumstances warranting the examination. ( Town of Hancock v. First Nat. Bank, 93 N.Y. 82, 86; Brannon v. O'Mara, 193 App. Div. 892; Bloede Co. v. Devine Co., 211 App. Div. 180, 183; Reif v. Gebel, 246 App. Div. 776, 777.) It sufficiently appears that the proposed witness has an office for the regular transaction of business in person in New York County. Settle order on notice. Close, P.J., Carswell, Johnston, Taylor and Lewis, JJ., concur.