166 Misc. 446 | N.Y. Sur. Ct. | 1938
The application for examination before trial and for discovery and inspection is granted in all respects and as to both the party and the witness. The case is one of special circumstances which render it proper that the deposition of the witness be taken. As was said in McCullough v. Auditore (216 App. Div. 510, 512): “No argument is necessary to show that special circumstances exist in this case permitting the examination of the witness. In every respect, except being named in the record, the witness is an adverse party."
The relationship between the witness and the person claiming as surviving spouse is of vital importance in the affairs of this estate and the court should not permit technical objection to erect a bar to a full and complete disclosure of the facts. So far as discretion is involved in the matter it should be exercised in favor of the representatives of this deceased. The discovery being incidental to the examination it should be granted despite rule 140 of the Rules
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