241 A.D. 840 | N.Y. App. Div. | 1934
The decision of this court handed down on April 20, 1934 [ante, p. 829], is hereby amended to read as follows: Order in so far as an appeal is taken therefrom reversed on the law and the facts, with ten dollars costs and disbursements, and the motion to vacate the notice to take the deposition of the defendants as adverse parties before trial denied, and the motion to take the deposition of William A. Daly as a witness before trial granted — the examination to proceed at the place and hour designated in the order five days after the entry of the order herein. Under the circumstances disclosed by the record the plaintiff is entitled to the exercise of the discretion of the court in its behalf for the purpose of granting examination of the defendants to enable the plaintiff to controvert defenses by avoidance. (Palmison v. First National Bank & Trust Company, 234 App. Div. 797; Schweinburg v. Altman, 131 id. 795.) The right [to examine a party, even where such party has the affirmative, rests in discretion (Public National Bank v. National City Bank, 261 N. Y. 316); and in this case such discretion is properly' exercised for the purpose of facilitating the trial. (Marine Trust Co. v. Nuway Devices, Inc., 204 App. Div. 752, 753.) As to the examination of William A. Daly, special circumstances warranting his examination sufficiently appear so that his examination in certain respects was allowed at Special Term. (See Bloede Co. v. Devine Co., 211 App. Div. 180, 183.) The witness cannot, of course, be compelled to divulge confidential communications. Lazansky, P. J., Carswell and Davis, JJ., concur; Young and Hagarty, JJ., dissent and vote for affirmance.
