Coburn v. Warner

12 F.R.D. 188 | S.D.N.Y. | 1951

DIMOCK, District Judge. .

This motion is one made by the plaintiff B. Melba Coburn to vacate a notice of examination to take place in New York, N. Y. served by the defendant Lillian Futerman, or for a direction that the examination be held as written interrogatories or that it be held in Boston. Affidavits submitted in support of the motion indicate that this plaintiff has an elderly brother and sister who are dependent on her, that she resides in Dracut, Massachusetts, about 35 miles from Boston with her brother and sister, that her presence in the home at night is needed in order to care for the brother and sister who are not well, that continued absence from her work would jeopardize her employment and that the plaintiff and her brother and sister are without financial resources.

Plaintiff attended at the trial of a severed issue in this case in New York and took the witness stand before it was settled. Counsel for defendant Futerman permitted her to return to Massachusetts without requiring an examination at that time.

It is true that plaintiff sought this forum but there is no inflexible rule that a plaintiff should submit to examination at the forum chosen. Ginsberg v. Railway Express Agency, Inc., D.C., 6 F.R.D. 371. Under the circumstances of this case plaintiff should not be required to come to New York for examination. Defendant Futerman may proceed at her election to examine plaintiff either by written interrogatories or in Boston, Massachusetts, orally.

Settle order on notice.