Opinion
July, 1933.
Order reversed on the law, with ten dollars costs and disbursements, and defendants' motion to vacate the notice of examination denied, with ten dollars costs; the examination to proceed on five days' notice. In our opinion, the plaintiff is entitled to examine respondent Guernsey on all matters material to plaintiff's cause of action, and the competency and admissibility of the testimony cannot properly be determined until the trial of the action, its admissibility then depending upon whether any person or persons were present when conversations or communications were had between the respondent and his client, the testatrix, and whether the respondent, on the trial, shall waive his privilege. Lazansky, P.J., Young, Scudder, Tompkins and Davis, JJ., concur.